Petition for Writ of Certiorari — Ulane v. Eastern Air Lines, Inc.
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
84-1328 v Office - Supreme Court, U.S.
No.
FILED
FEB 14 1985
ALEXA Ss
Supreme Court of the Uuited-Stee—
In The
NDER & STEVAS,
October Term, 1984
KAREN FRANCES ULANE, Petitioner,
vs.
EASTERN AIR LINES, INC., Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SEVENTH CIRCUIT COURT OF APPEALS
Of Counsel:
Fay CLAYTON
BRIAN D. ROCHE
DEAN A. DICKIE
30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
(312) 207-1000
Attorney for Petitioner
SACHNOFF WEAVER & RUBENSTEIN, LTD.
30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
February 14, 1985
CHAS. P. YOUNG CHICAGO
i
QUESTIONS PRESENTED
1. Whether the Court of Appeals seriously abused its
authority by reversing the District Court’s findings of fact
that the Petitioner was a female and that she was dis-
criminated against based on sex in violation of Title VII of
the Civil Rights Act of 1964, without applying the standard
of review required by Federal Rule of Civil Procedure 52(a)
and this Court’s decision in Pullman-Standard v. Swint, 456
U.S. 273 (1982).
2. Whether transsexuals are protected under Title VII of
the Civil Rights Act of 1964 against discrimination based on
change of sex.
il
TABLE OF CONTENTS
Questions Presented ...........- 00 eee cece cere eee
Paha of ComeemlS ....ccccctcocsssesesese ee
Table of Actharitias.. oo. ccccccecscucssen ence
Opinions Below............--eececeeceeeeeeeeees
Sremtadiatign .. ow cccccccseuvvesessesse
Seatute fnvelwed ......ccccsceuveeeeseeeee
Seatement of the Cees .....occccccsccesvessuneeee
Reasons for Granting the Writ ................++.-
I.
Il.
The Court of Appeals Seriously Abused its Au-
thority by Reversing the Findings of Fact of the
District Court Without Applying the Standard
of Review Required by Fed. R. Civ. P. 52(a) and
Decisions of this Court .........ccesccccceces
A. The Court of Appeals Ignored the Standard
of Review Required By this Court in
Pullman-Standard.........0ssccceccecees
B. The Court of Appeals Should Have Re-
manded Count I to the District Court ....
In Concluding that Transsexuals are not Pro-
tected by Title VII, The Court of Appeals has
Created an Exception to Title VII’s Prohibition
Against Sex Discrimination Which Conflicts
With the Broad Language and Purpose of the
OY eet
QComolesbom .... occ cccvcscceteuesesseuee eee
il
iv
10
ll
12
17
19
iii
APPENDIX:
Judgment and Opinion issued by the Court of
Appeals on August 29, 1984.................
Final Judgment Order Pursuant to Rule 54(b)
issued by the District Court on February 8, 1984
Oral Findings of Fact and Conclusions of Law
omy by the District Court on December 28,
Memorandum Opinion issued by the District
Court on February 8, 1984..................
Supplemental Findings issued by the District
Court on March 6, 1984 ..................
Order Denying Rehearing and Suggestion for
Rehearing Jn Banc issued by the Court of >
peals on November 16, 1984
*t?t vt *® &@t ee eet ere = + + @
PAGE
iv
Cases PAGE
Awni Mid, Ine. v _Rjeli- Oranie Lines, 458 F.2d 712 (7th
denied, 409 U.S. 877 (1972) .......-++- 18
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977)...... 21, 22
Bundy v. Jackson, 641 F.2d 934 (D.C, Cir. 1981) .... 22
DeAnda v. St. Joseph's Hospital, 671 F.2d 850 (Sth Cir.
BOOM on cc nsvccvvssevenccvesessssccsssesseses 18
Diaz v. Pan American World Airways, Ine., 442 F.2d
385 (Sth Cir.), cert. denied, 404 US. 950 (1971) .
Griggs v. Duke Power Co., 401 US. 424 (971) ...... 20
Holloway v. Arthur Andersen, 566 F.2d 659 (9th Cir.
SOPED cncses POO PNT eer err TT Ty TTT. 18
leweod Laboratories, Inc. v. ives Laboratories, Inc., 456
U.S. 844 (1962) .. 0... cere eee eee ee eee eens 13
Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th Cir.), cert.
denied, 431 U.S. 917 (1977) ... eee eee 21
Jeffries v. Harris Cownty Community Action Aswe., 615
F.2d 1025 (Sth Cir. 1980)... ~~... 6. eee eee 22
McDonald v. Sante Fe Trail Transportation Co., 427 U.S
ht) eo. 20
Morales v. Haines, 486 F.2d 880 (7th Cir. 1973) ees 18
In re Neis, 723 F.2d 584 (7th Cir. BED osinvsucecs 18
Phillips v. Martin-Marietta Corp., 400 US. 542 (1971). 21
Pullman-Standard, Div. of Puliman, Inc. v. Swint, 456
U.S. 273 (1982) ..... eee e eee eee rene renee ene passim
pene Bene ee nas a on
(1DTR) once cevsneccvvesesrsnnvccsssessseness
Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.),
cert. denied, 404 U.S. 991 (1971) .. 6.6.6.
Tomkins v. Public Service Electric & Gas Co., 568 F.2d
1044 (3rd Cir. 1977) ......-. eee eee eee eee eens
Wright v. Methodist Youth Services, Ie. 511 F. wee
907 (N.D. Tl. 1981) .....- 6 ee eee eee eee eee eee
Se S&S &
.
ania
Statutes a
28 U.S.C. § IQA) ooo occ ccc ccc ce ee >
@ USC amd nae 3
S.C. § 2000e-2aNXl) occ cece cccceccece ees pass
ll. Rev. Stat, ch. 111-1/2, § 73-17%(a)....... eee ae
- Other Authorities
eral Rule of Civil Procedure re mace
oS tn & SD gory F ESSSSE SS ORES passim
4 52.0513) and 152.062) Rae eekban
Developments in the Law, Employment Discrimination
and Title VII of the Civil Rights Act of 1964, 84 H
SU eee if wTTTTT Ty : a
H.R. Rep. No. 238, 92nd cong., Ist Sess. 5 (1972)
an
reprinted in 1972 U.S. Code Cong. & Ad. News 2137 20, 21
In The
Supreme Court of the United States
October Term, 1984
Petitioner-Plaintiff respectfully requests the issuance of a
writ of certiorari to the Seventh Circuit Court of Appeals to
review the judgment entered August 29, 1984.
OPINIONS BELOW
The Seventh Circuit Court of Appeals issued its judgment
and opinion on August 29, 1984 They are reproduced as
Appendix A. The opinion reversed the judgment on Counts I
and II in Petitioner’s favor entered by the District Court on
February 8, 1984. The final judgment order entered pur-
suant to Fed. R. Civ. P. 54(b) is reproduced as Appendix B.
The District Court’s judgment was supported by an oral
opinion issued on December 28, 1983, a Memorandum Opin-
ion issued on February 8, 1984, and written Supplemental
Findings issued on March 6, 1984. These are reproduced as
Appendices C, D, and E, respectively.
The Court of Appeals denied a Petition for Rehearing
on November 16, 1984. That order is reproduced as
Appendix F.
9
JURISDICTION
The Court of Appeals’ judgment in Respondent's ayor on
Counts I and II was entered on August 29, 1984, and its order
denying the Petition for Rehearing was entered on
November 16, 1984. The jurisdiction of this Court is invoked
under the authority of 28 U.S.C. §1254(1).
(a) It shall be an unlawful employment practice for
an employer
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color, religion,
sex, or national origin;. ..
STATEMENT OF THE CASE
A. Summary
This is a Tithe VII case brought by a pilot who was fired by
Bastern Air Lines, Inc. (“Eastern”) because of her sex. After
flying successfully and without incident for Eastern for 12
years, Karen Ulane took a medical leave of absence to have
sex reassignment surgery which changed her sex from male
to female. After an unusually rigorous series of physical,
psychological and psychiatric examinations by the Federal
Aviation Administration (“FAA”), Ms. Ulane received an
FAA First Class Medical Certificate in February 1981.
Ms. Ulane presented her FAA certificate to Sastern, offered
to take any required examinations and retraining, and
informed Bastern that she was ready to return to flight duty.
On April 24, 1981, without ever examining her, Eastern fired
her.
SAI.
3
In June 1981, Ms. Ulane filed with the Equal Employment
Opportunity Commission (“EEOC”) a charge of diserimina-
tion base! on both sex and transsexuality. She received a
right-to-sue letter dated June 17, 1981, aad on August 4,
1981, she filed her complaint in the federal district court.
Jurisdiction was based on 28 U.S.C. §1331. Counts I and II
charge sex-based discrimination under Title VII. Count I
charges discrimination as a female, and Count II charges
discrimination as a transsexual.
Eastern moved for dismissal claiming that transsexuals
were not protected by Title VII and that Ms. Ulane could not
be discriminated against as a woman. The District Court
denied the motion in an oral opinion on April 21, 1982 which
held that Counts I and II stated claims of discrimination
based on gender under Title VII. Cross-motions for sum-
mary judgment were later denied in a written opinion dated
April 26, 1983.
Trial began on September 26, 1983 and was completed on
December 27, 1983. On December 28, 1983, the District Court
delivered its oral opinion finding that each of Eastern’s
reasons for the discharge was pretextual and that they estab-
lished disparate treatment between Petitioner and Eastern’s
male pilots.
While expressing its firm opinion that Ms. Ulane had
prevailed on Count II (discrimination as 4 transsexual), the
District Court also stated the following regarding Count I:
In doing so, I do not mean to imply that if Count I
‘discrimination as a female) were the only count I would
not enter judgment for plaintiff on that count. I say
that because one never knows beyond a shadow of a
doubt what the Appellate Courts might do, and in the
event the finding on Count II should be reversed, I
would want plaintiff to be in the position of arguing
alternatively that the judgment should be affirmed on
Count I because upon remand in such a situation, I
would enter judgment for plaintiff on Count I on the
4
basis of the record that has already been made here
(C-34).’
On February 8, 1984, the District Court entered judgment
in Ms. Ulane’s favor on both Counts I and II (B-3). In its
Supplemental Findings dated March 6, 1984, the District
Court clarified its intent that, even though the ruling on
Count I was stated in the alternative, the findings announced
on December 28, 1983, applied with equal force to both Count
I and Count II (E-2). The District Court also clarified its
earlier rulings and unequivocally stated that, based on the
evidence, Ms. Ulane is a transsexual and a female (E-2).?
Hastern appealed the judgment in Ms. Ulane’s favor on
Counts I and II. On August 29, 1984, the Seventh Circuit
issued its opinion and judgment reversing the District Court.
The Court of Appeals reversed the judgment on Count I
because it concluded that the District Court made no findings
to support its determination that Eastern had discriminated
against Ms. Ulane as a female. It reversed the judgment on
Count II based on its conclusion that Title VII does not
protect transsexuals from discrimination based on sex. The
Court of Appeals’ decision makes clear that there are no
medical or safety issues in this case. The Court of Appeals
let stand the District Court’s findings that Eastern’s safety
and medical concerns were completely without basis and
‘The reference to a letter and number refer to an Appendix and
page.
*On December 28, 1983, in discussing the unusual factual issue
of the plaintiff’s sex, the District Court noted:
Prior to my participation in this case, I would have had no
doubt that the question of sex was a very straight-forward
matter of whether you are male or female. That there could
be any doubt about that question had simply never occurred to
me. I had never been exposed to the arguments or to the
problem. After listening to the evidence in this case, it is
clear to me that there is no settled definition in the medical
community as to what we mean by sex {C-4].
5
pretextual. On November 16, 1984, Ms. Ulane’s petition to
the Court of Appeals for rehearing was denied.
B. The Petitioner’s Professional Background
Karen F. Ulane has been flying airplanes since 1959 and
has been a certified pilot since 1964. She served in the
United States Army from 1964 to 1968, where she was an
honor graduate of the Army flight school, and flew many
combat missions in Vietnam. Although the aircraft she was
piloting was hit by enemy fire at least eight times, she
handled all of those emergency situations without difficulty.
Ms. Ulane was decorated with the Air Medal of Honor and
eight clusters, the Vietnam Service Medal, and the Army
Commendation Medal for exceptionally meritorious service.
She was honorably discharged in 1968 and began flying for
Eastern that same year. Ms. Ulane worked successfully for
Eastern for 12 years and rose from the rank of Second Officer
to First Officer. She was appointed by Eastern to serve as a
flight instructor, a distinction Eastern acknowledged is an
honor.
Ms. Ulane was elected and re-elected by her fellow pilots
to represent them in the pilots’ union. In the 16 years she
flew for the Army and for Eastern, she logged over 8,000
actual in-flight hours. In all this time she never had any
problem handling emergency situations, never had an
accideat or incident, never failed any of the tests which
Eastern requires regularly of its pilots, and was never dis-
ciplined in any way. She was commended for her excep-
tional performance, and fellow pilots at trial Geseribed her as
a “very sharp individual, a very sharp pilot”. The District
Court found she was not only a better-than-average pilot, she
was “better than good” (C-14).
C. Gender Dysphoria
M “
Karen Ulane is a transsexual. Transsexualism, or gender
dysphoria,” is a condition where one experiences discomfort
or discontent about being the anatomic sex to which one was
6
born.* Until she was diagnosed conclusively as a transsexual
in 1979, she lived as a male. Eastern was informed of the
purpose of Ms. Ulane’s leave of absence in October 1979,
about one month after it began. Eastern took no action at
that time. Her surgery was performed in April 1980.
Ms. Ulane’s transsexuality never interfered in any way
with her ability to fly an airplane. Even Captain Causey,
who played a major role in terminating Ms.Ulane, admitted
at trial that through the date she took leave to prepare for
her surgery, she was a “thoroughly competent and capable
pilot.”
The purpose of Ms. Ulane’s leave, which began on
September 1, 1979, was to enable her to prepare for sex
reassignment surgery. She was thoroughly evaluated by the
members of the Gender Board of the University of Chicago.
Before a candidate is approved for surgery by the Board, the
candidate must be approved by the unanimous vote of all the
Board’s members, which include a psychiatrist, a gynecolo-
gist, a urologist, a plastic surgeon, an endocrinologist, a
general surgeon, and the University’s legal counsel.
The Gender Board unanimously approved Ms. Ulane for
surgery. Ms. Ulane and her doctors testified that the results
of the surgery were excellent. When the surgical result is
good, even a gynecologist cannot tell the difference between
the post-operative transsexual woman and a person who was
born a woman. Although reproductive organs are not
created by the operation and the post-surgical transsexual
woman cannot bear children, the anatomical likeness is iden-
tical. Based on its observations of Ms. Ulane in the court-
room from September through December 1983, and based on
her testimony on the witness stand where she testified over
*Transsexuality is entirely different from homosexuality:
“Homosexuals... are not persons who have sexual identity prob-
lems. They are content with the sex into which they were born.
‘Transsexuals, on the other hand, are persons with a problem
relating to their very sexual identity as a man or woman” (C-4).
7
two separate days, the District Court found that “ijt would
take an extremely practiced eye, it seems to me, to detect any
difference between the plaintiff and the biological woman”
(C-13). The District Court also found that the psychiatric
testimony confirmed her as a woman (C-13). By June 1980,
she was prepared to return to her job as a pilot for Eastern.
D. The FAA Certification Process
After contacting Eastern about her desire to return to
work, Ms. Ulane began her recertification procedure with the
FAA. Ms. Ulane had to pass a current medical exam to have
her FAA medical certificate renewed.
The FAA’s investigation of Ms. Ulane was extremely
thorough. In addition to the standard physical exam, the
FAA required Ms. Ulane to be examined by an independent
psychologist and an independent psychiatrist. Both found
Ms. Ulane fully qualified to fly.
In addition to the two outside consultants, five additional
doctors from the FAA, all of whom are specialists in aviation
medicine, participated in the decision to certify Ms. Ulane.
On January 23, 1981, the FAA notified Ms. Ulane that she
was qualified for a First Class Medical Certificate.
The FAA has received applications from at least 21
transsexual pilots. It has found 19 of them, including Ms.
Ulane, qualified to fly and has issued them medical certifi-
cates. The remaining two applications have been denied.
E. Eastern’s Discriminatory Treatment of Ms. Ulane
While Ms. Ulane’s application was pending before the
FAA, Eastern conducted the “investigation” which sup-
posedly determined that Ms. Ulane was somehow unsafe to
fly. The District Court’s findings concerning Eastern’s inves-
tigation can be summarized with the following conclusions
by the Court:
Eastern went out of its way not to learn whatever could
be learned in plaintiff’s favor on the question of safety
(C-15}.
Eastern from the outset here took the attitude that its
mind was made up, and it did not want to be confused
with the facts. It substituted for any kind of investiga-
tion worthy of the name a prejudiced, close-minded
predetermination of the question of whether plaintiff
was Suitable to continue in the cockpi —
it of one of the
liners (C-16] Pp heir air
Eastern never gave Ms. Ulane any of the examinations it
routinely uses for insuring that its pilots are qualified to fi
The District Court found that Eastern failed to follow v4
own procedures in Ms. Ulane’s case because:
The defendant was not interested in investigating or in
following its normal procedures because it was afraid of
what the results would be. It pretty well knew that
those results would not bolster its already-made decision
to fire the plaintiff but, rather, would undermine the
legitimacy of that decision [{C-27}.*
After hearing at least 19 days of testimony, including 17 live
witnesses, 4 videotaped witnesses, and 6 additional witness
depositions, and after reviewing 76 plaintiff Exhibits and 45
defense Exhibits, the District Court found that each of East-
ern’s nine reasons for termination, whether considered
individually or collectively, was pretextual. The District
Court found that the entire discharge process had been
managed by Eastern’s legal department “in an obvious effort to
avoid liability under the sex discrimination law” (C-14),
. ‘At trial one of Eastern’s chief witnesses, Captain Causey, testi-
fied that he has no doubt that Ms. Ulane could operate the plane
properly and safely and he kn
a. ows of no one at Eastern who
9
The District Court further found that Reason Five in the
first discharge letter was a virtual admission of discrimina-
tion based on sex (C-23). Reason Five states:
To the extent the operation and the counseling you have
undergone have been successful in changing your essen-
tial nature from male to female, it has changed you
from the person Eastern has hired into a different per-
son. Eastern would not have hired you had it known
you contemplated or might in the future contemplate
such an action.
F. Karen Ulane Is A Female
In entering judgment for Ms. Ulane on Count I, the Dis-
trict Court found that Ms. Ulane is a woman and was
discriminated against based on her sex (E-2). It is uncon-
troverted that Ms. Ulane’s legal status in her home state is
female, for Illinois recognizes the new legal status after sex
reassignment surgery has been performed. See Ill. Rev. Stat.
ch. 111-14, § 73-17(d).
After hearing extensive medical as well as lay testimony
concerning Ms. Ulane’s gender, after examining volumes of
medical materials, and after having observed her over
several months in the courtroom as well as on the witness
stand, the District Court found that Ms. Ulane is a female
(E-2).°
The District Court concluded that though there is no
settled medical definition of “sex”; it “is not a eut-and-dried
matter of chromosomes” (C-4). Defining an individual’s sex
requires considerations of psychological identity, societal
perception, self-perception and other factors (C-4-5). The Dis-
trict Court found that Karen Ulane appears to be a biological
woman, conducts herself as a woman (C-13), and her post-
operative legal status is that of female (C-7). “The evidence
5 A substantial body of medical literature which was introduced
into evidence supports this same result.
10
clearly predominates in favor of the conclusion that plaintiff
is a female, not a male” (E-1-2).
REASONS FOR GRANTING THE WRIT
This Court should grant the petition for a writ of certi-
orari for two reasons. First, the Court of Appeals seriously
abused its authority in reversing findings of fact of the
District Court in violation of the decisions of this Court and
of Rule 52(a) of the Federal Rules of Civil Procedure.
Without giving any reasons and without applying the
“clearly erroneous” test, the Court of Appeals reversed the
District Court’s findings on Count I that the Petitioner was a
female and that she was discriminated against on that basis
in violation of Title VII of the Civil Rights Act of 1964 (the
“Act”), The Court of Appeals’ unexplained and improper
usurpation of the fact-finding role of the District Court is a
bold departure from the accepted and usual course of federal
judicial proceedings, and is in direct conflict with decisions of
this Court.
Second, the Court of Appeals’ conclusion that transsexuals
are not protected under Title VII from discrimination based
on their sexual identity or change of sex is an unduly narrow
and unsupportable interpretation of the statute’s broad
prohibition against discrimination based on sex. Whether
transsexuals as a group should be prchibited from invoking
the protection of Title VII is an important question of
federal law which has not been, but should be, settled by this
Court.
I. THE COURT OF APPEALS SERIOUSLY ABUSED
ITS AUTHORITY BY REVERSING FINDINGS OF
FACT OF THE DISTRICT COURT WITHOUT
APPLYING THE STANDARD OF REVIEW
REQUIRED BY FED. R. CIV. P. 52(a) AND DECI-
SIONS OF THIS COURT
The District Court entered judgment in favor of Ms. Ulane
on Count I because it found that she was a woman and that
— aN ae ane eee
ll
she was discriminated against on that basis. While the
Court of Appeals recognized that these findings might entitle
Ms. Ulane to protection under Title VII, it failed to reach
that question because it refused to accept the findings of the
District Court. In fact, the Court of Appeals preemptively
reversed the District Court’s findings of fact (1) without so
much as a nod to the governing standard of review and
(2) without the careful review of the record necessary to
reject a finding as clearly erroneous. The Court of Appeals’
reversal of the findings of fact on Count I is in direct conflict
with this Court’s decision in Pullman-Standard, Div. of
Pullman, Inc. v. Swint, 456 U.S. 273 (1982), and seriously
undermines the fact-finding role of the District Court.
The Court of Appeals’ flagrant procedural error works an
exceptional injustice here because it thwarted one individ-
ual’s struggle for fair treatment against a giant corporation
whose every excuse for firing her was a pretext and a sham.
The District Court found that Eastern, intentionally and in
bad faith, worked a terrible injustice on Karen Ulane. East-
ern fired her after she altered her physical characteristics to
be consistent with her true sexual identity, that of being a
woman. Once a woman, they subjected her to a different
standard of treatment, far harsher than any male pilot
received at Eastern.
Not every injustice has a remedy under Title VII. The
federal laws are such that persons can legally be dis-
criminated against in employment for a wide variety of
reasons ranging from the color of one’s hair to one’s sexual
preference. These reasons, outside of Title VII's coverage,
may work injustices on the individuals involved, but Con-
gress—and the courts—have marked out only specific kinds
of discrimination in employment which are undeniably
covered by Title VII. It is beyond dispute, however, that
discrimination against a person because she is a woman falls
squarely within this bright-line category.
After three months of trial and a painstaking assessment
of all the evidence, the District Court made a finding that
12
Eastern discriminated against Karen Ulane because she is a
woman. That finding is crystal clear, unambiguous, and
plainly supported by the record. Yet the Court of Appeals
rejected that finding in a manner squarely in conflict with
the governing rule of law. This Court has commanded that
in Title VII cases, a finding of discrimination against a
person in a protected category—here discrimination against
a person because she is a woman—can only be rejected if the
finding, after careful examination of the record, is determined to be
clearly erroneous. See Pullman-Standard, Div. of Pullman, Inc. v.
Swint, 456 U.S. 273 (1982).
The injustice done to Karen Ulane by Eastern by ignoring
the law has been compounded by the Court of Appeals’
failure to engage in the required process of carefully analyz-
ing the findings of the District Court and their foundation in
the record—a record that is replete with support for the
District Court’s factual findings that she was discriminated
against because she is a woman.
Not every injustice has a remedy under Title VII. But the
injustice done to Karen Ulane because she is a woman must
be remedied by this Court. Not to do so, based on the record
in this case, would flaunt the procedural protections required
by this Court in appellate review, and would be contrary to
the allocation of judicial power among the federal courts.
A. The Court Of Appeals Ignored The Standard Of
Review Required By This Court In Pullman-
Seadead
The Court of Appeals makes precisely the same mistake
committed by the Fifth Circuit in Pullman-Standard, Div. of
Puliman, Inc. v. Swint, which was reversed by this Court in
1982. 456 U.S. 273. In Pullman-Standard the Fifth Circuit
reversed findings of the district court and substituted its own
findings because it concluded that the lower court was wrong
in finding no discrimination. The Fifth Circuit made only
passing reference to Rule 52(a), Fed. R. Civ. P. This Court
granted certiorari to settle the issue whether courts of
13
appeals are bound by the clearly erroneous standard under
Rule 52(a) in reviewing lower court determinations of “ulti-
mate” facts such as motive or intent in Title VII cases. 456
U.S. at 276. See also 5A J. Moore & J. Lucas, Moore’s Federal
Prati 4 52.05(3] (1982) (noting conflict prior to Pullman-
landard as to whether “ultimate” facts were reviewable by
independent examination of the court of appeals).
Puliman-Standard ended the confusion. This Court ruled
that the Fifth Circuit erred in reversing findings of “ulti-
mate fact” without deference to those findings under the
“clearly erroneous” test of Rule 52(a):
Rule 52(a) broadly requires that findings of fact not be
set aside unless clearly erroneous. /t does not make excep-
tions or purport to exclude certain categories of factual find-
ings from the obligation of a court of appeals to accept a
district court’s findings unless clearly erroneous. It does not
divide facts into categories; in particular, it does not
divide findings of fact into those that deal with “ulti-
mate” and those that deal with “subsidiary” facts.
456 U.S. at 287 (emphasis added); see also Inwood Laboratories,
Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 857 (1982)
(reversing the Second Circuit because it had improperly
substituted its interpretation of the evidence for that of the
trial court).
Count I does not present a “mixed question of law and
fact” but a simple question of “ultimate” fact: Was Karen
Ulane discriminated against by Eastern because she is
female? The Court of Appeals’ one-page discussion of Count
I, disearding the District Court’s findings without even men-
tioning Rule 52(a) or examining the record, suggests that the
Court of Appeals believes that the District Court did not
mean what it said. The District Court expressly found the
facts that the Court of Appeals seems to think it omitted:
“(Sjhe is a female,” and “she was discharged by Eastern
because of her sex” (E-1-2).
14
After three months of trial, in an oral opinion that was
later supplemented by further written findings, the District
Court stated its findings that, based on a wealth of evidence,
sex was more than just chromosomes (C-7). Indeed, under
Illinois law, Karen Ulane is legally recognized as a female.
See Ill. Rev. Stat. ch. 111-14, § 73-17(d). Under principles of
federalism, that fact alone should receive considerable defer-
ence. But the District Court did not end its inquiry with
taking judicial notice of the statute and the fact that Karen
Ulane is legally recognized by the State of Illinois as a
female (C-7). It also found by the preponderance of the
evidence that Karen Ulane is a female based on (1) her
testimony and demeanor; (2) the credibility of many expert
witnesses; (3) Eastern’s own perception of Ms. Ulane as a
woman as reflected in the testimony of Eastern pilots who
knew and worked closely with her; and (4) Eastern’s own
admission in Reason Five of the first discharge letter that
her operation had “changed her essential nature from male
to female.”
Having found from the evidence that Karen Ulane was a
female, the District Court further found that she was dis-
criminated against by Eastern as a female. The Court stated
that all of the findings made with regard to Count II apply
to the conclusion that the Ms. Ulane was discriminated
against as a female:
It was and is my intention that all of my findings and
conclusions concerning sexual discrimination against
the plaintiff by Eastern Airlines, Inc. apply with equal
force whether plaintiff be regarded as a transsexual or a
female [E-2).
The Court of Appeals’ statement that “It is clear from the
evidence that if Eastern discriminated against Ulane, it was
not because she is female...” (A-12) is a flagrant usurpation
of the District Court’s function to find the facts and is in
direct conflict with the District Court’s findings.
15
Regardless whether this Court agrees with the Court of
Appeals that discrimination against transsexuals is not
eovered by Title VII, we are left with the District Court’s
unequivocal conclusion that Karen Ulane was treated differ-
ently as a woman. The Court of Appeals’ decision rides
roughshod over these findings without even suggesting that
they are clearly erroneous or unsupported by the record. The
Court of Appeals merely “reverses” the District Court’s find-
ings and substitutes its own finding that Karen Ulane was
not discriminated against as a female.*
The trial covered both Count I—discrimination against
Ms. Ulane as a woman, and Count IIl—discrimination
against Ms. Ulane as a transsexual. Contrary to the Court of
Appeals’ statement that all of the findings centered around
discrimination against transsexuals, there was ample
evidence at trial—and findings by the District Court—on
Count I as wel! as Count II. For example, the District Court
found:
I read [Reason Five] as a virtual admission of dis-
crimination, and in my view that discrimination is based
on sex within the meaning of the statute. Item five is
also in my view inconsistent with Eastern’s position
that plaintiff has undergone no sex change [C-23).
The Court also expressly found that Eastern did not fire male
pilots who concealed psychological conditions from the FAA,
but fired Karen Ulane for this reason (C-29-30).
*The Court of Appeals misapprehends the facts when it states
that the District Court “originally found only that Eastern had
discriminated against Ulane under Count Ii as a transsexual”
(A-11). The Court of Appeals overlooks the District Court’s
alternative findings, which were rendered immediately after trial:
“I do not mean to imply that if Count I were the only count I
would not enter judgment for plaintiff on that count... . [On
remand) / would enter judgment for plaintiff on Cownt I on the basis of
the record that has already been made here.” (C-34) (December 28, 1983)
(emphasis added).
16
Summarizing numerous findings of disparate treatment
between male and female pilots, the District Court said:
I further find that the plaintiff was in almost every
instance subjected to discriminatory and disparate treat-
ment for conduct which was in almost every instance, if
not every instance, far less serious than that of male
alcoholics whose conduct was excused by Eastern
If the Court of Appeals had examined the record and
applied the clearly erroneous standard it would have con-
eluded that the District Court’s findings of fact on Count I
were firmly rooted in the evidence.
The Court of Appeals was simply not correct when it
stated that “even if we accept the district judge’s holding
that Ulane is female, he made no factual findings necessary
to support his conclusion that Eastern discriminated against
her on that basis” (A-11). The Court of Appeals must have
overlooked or ignored the District Court’s initial and supple-
mental findings. The Court of Appeals’ disregard of these
findings, and its neglect of the clear support for these find-
ings in the record, is a violation of Pullman-Standard and
Rule 52.
The District Court found that Ms. Ulane made a prima
facie case, and that Eastern failed to articulate any legiti-
mate reason for discharge. Those findings cannot be set aside
unless they are shown to be clearly erroneous. This standard
of review is an exceptionally important safeguard of the
rights of Title VII litigants because it entrusts the questions
of fact to the tribunal best able to assess those issues: the only
tribunal that weighs credibility of witnesses. When the
Court of Appeals freely disregards the fact-finding role of
the District Court, the Supreme Court must exercise its
authority to restore the necessary allocation of power
between the trial and appellate courts.
A a ARMA
Remanded Count I To The District Court
The Court of Appeals reversed on Count I, citing insuf-
ficient findings for the conclusion that Ms. Ulane was dis-
eriminated against on the basis of sex.’ Based on its own
contrary findings, the Court of Appeals ordered that judg-
ment be entered in favor of the defendant. Under Pullman-
Standard this procedure was improper.
This Court has ruled:
When an appellate court discerns that a district court
has failed to make a finding because of an errone. us
view of the law, the wsual rule is thal there should be a
remand for further proceedings to permit the trial court to
make the missing findings:
{Flact-finding is the basic responsibility of district
courts, rather than appellate courts, and... the
court of appeals should not have resolved in the
first instance this factual dispute which had not
been considered by the district court.’ (citation
omitted |
Likewise, where findings are infirm because of an
eironeous view of the law, a remand is the proper
course unless the record permits only one resolution
of the factual issue.
456 U.S. at 291-92 (emphasis added). See also 5A J. Moore &
J. Lucas, Moore's Federal Practice, § 52.06[2) (1982) (noting that
the proper procedure in the event of insufficient findings is to
remand for appropriate findings).
The Court of Appeals did not hold that under no set of
facts could Ms. Ulane establish a Title VII violation. Indeed,
the Court of Appeals acknowledged that Karen Ulane is not
"Although the Court of Appeals characterized the issue whether
Ms. Ulane was discriminated against based on her sex as a “conclu-
sion,” it is clear that this is a factwal issue under Pullman-Standard,
as discussed above.
18
deprived of Title VII protection simply because she is a
transsexual as well as a woman. See A-11-12, affirming the
dicta in Holloway v. Arthur Andersen, 566 F.2d 659, 664 (9th
Cir. 1977) (“transsexuals claiming discrimination because of
their sex, male or female, would clearly state a cause of
action under Title VII”). However, after concluding that
discrimination against Ms. Ulane as a female would be
actionable, the Caurt of Appeals then reached the anomalous
result, even though the District Court had specifically found
she was discriminated against as a female, of saying she was
not. The Court of Appeals apparently believes that the
District Court had made insufiicient findings to support the
ultimate finding that Ms. Ulane had suffered discrimination
because she is female. (“Even if we accept the district
judge’s holding that Ulane is female, he made no factual
findings necessary to support his conclusion that Eastern
discriminated against her on that basis.” (A-11)). As we
have shown, this is wrong. But even if the findings were
insufficient, unclear or totally absent, the appropriate course
is remand, not reversal. See, eg., In re Nets, 723 F.2d 584, 588
(7th Cir. 1983) (where district court makes inadequate find-
ings, remand for additional proceedings); Morales v. Haines,
486 F.2d 880, 882 (7th Cir. 1973) (where district court fails to
find on a material issue, vacate and remand for appropriate
findings); see also DeAnda v. St. Joseph’s Hospital, 671 F.2d 850,
855 (5th Cir. 1982) (“if factual findings are absent, the case
must be remanded for such findings’’).
Petitioner submits that, based on the extensive factual
record and the detailed findings of fact made by the District
Court (which were incorporated by reference rather than
being recited verbatim with regard to Count I), and taking
all the inferences and viewing all the evidence most
favorable to the party prevailing at trial, as the court must
do, Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712, 718 (7th
Cir.), cert. denied, 409 U.S. 877 (1972), the District Court’s
ruling on Count I should have been affirmed. However, if
the Court of Appeals had any doubt or confusion on the
subject of what factual findings supported the finding of
19
discrimination against Ms. Ulane as a woman, or if the Court
of Appeals concluded that those findings were somehow
confusing or incomplete, remand was the only appropriate
course of action.
II. IN CONCLUDING THAT TRANSSEXUALS ARE
NOT PROTECTED BY TITLE VII, THE COURT OF
APPEALS HAS CREATED AN EXCEPTION TO
TITLE VII’S PROHIBITION AGAINST SEX DIS-
CRIMINATION WHICH CONFLICTS WITH THE
BROAD LANGUAGE AND PURPOSE OF THE ACT
In excluding transsexuals from the protection of TitleVII,
the Court of Appeals has decided that a group of individuals
may be discriminated against based on their sex without
redress to the nation’s employment discrimination laws.
Whether transsexuals shou!d continue to be outside the scope
of Title VII’s protection is an important federal question
which has not been, but should be, settled by this Court.
The Court of Appeals’ conclusion that transsexuals should
not be protected because Congress has not shown any specific
intent to do so is inconsistent with the Act’s general lan-
guage and broad purpose. Granting protection for Ms. Ulane
and other transsexuals discriminated against based on their
sex, provides relief to the very individuals Congress sought
to protect: victims of discrimination that is based on one of
the impermissibie factors—sex—and which is completely
unrelated to the individual’s capabilities and past job
performance.
There is little doubt that the original goal of Congress in
enacting Title VII was to protect blacks. Congress sought “to
achieve equality of employment opportunities and remove
barriers that have operated in the past to favor an identifi-
able group of white employees over other employees.” Griggs
v. Duke Power Co., 401 U.S. 424, 429-430 (1971); see also
Developments in the Law, Employment Discrimination and
Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109,
20
1166 (1971). The legislative history to procedural amend-
ments to the Act in 1972 also reveals that if Congress had
any intention when it approved the addition of “sex” to the
Act in 1964, it was to protect women. See H.R. Rep. No. 238,
92nd Cong., Ist Sess. 4-5 (1972) reprinted in 1972 U.S. Code
Cong. & Ad. News 2137, 2140-2141.
The language of Section 703(a) of Title VII, however, does
not limit its protection to members of minority groups and
women, and courts have refused to so limit it. See McDonald
v. Sante Fe Trail Transportation Co., 427 U.S. 273, 280 (1976)
(Title VII prohibits discrimination against whites as well as
blacks); Diaz v. Pan American World Airways, Inc., 442 F.2d
385 (5th Cir.), cert. denied, 404 U.S. 950 (1971) (Title VII
protects men as well as women). Rather than limit the Act
to those groups that were undoubtedly the motivating force
behind Title VII in 1964, courts have been guided in their
interpretation by the larger purpose and principle that
underlies it:
(T}he removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial or
other impermissible classifications.
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Lower
courts have staced the guiding principle of Title VII in a
similar fashion:
(T)he purpose of the Act was to provide a foundation in
the law for the principle of nondiscrimination. Constru-
ing the statute as embodying such a principle is based
on the assumption that Congress sought a formula that
would not only achieve the optimum use of our labor
resources but, and more importantly, would enable indi-
viduals to develop as individuals.
Diaz v. Pan American World Airways, Inc., 442 F.2d at 386-87
(rule allowing only female flight attendants violates Title
VII). Other courts have recognized that Title VII “requires
an interpretation animated by the broad humanitarian and
DRBSOR es ew ee
21
remedial purposes underlying the federal proscription of
employment discrimination.” Barnes v. Costle, 561 F.2d 983,
994 (D.C. Cir. 1977) (sexual harrassment violates Title VII).
The House Report to the 1972 amendments states the goal as
follows:
The time has come to bring an end to job discrimination
once and for all, and to insure every citizen the opportu-
nity for the decent self-respect that accompanies a job
commensurate with one’s abilities.
H.R. Rep. No. 238, 92nd Cong., Ist Sess. 4-5 (1972) reprinted
in 1972 U.S. Code Cong. & Ad. News 2137, 2140-2141. These
pronouncements establish that the language and remedial
purpose of Title VII are broad enough to protect any individ-
ual who is the victim of discrimination based on any of the
impermissible factors—race, color, sex, religion or national
origin.
The Court of Appeals placed undue reliance on the lack of
any legislative history indicating that Congress specifically
intended to include transsexuals within the protection of
Title VII. Courts have refused to follow such a rigid rule
when construing the provisions of Title VII. For example,
there is no legislative history which indicates that in 1964
Congress specifically intended to prohibit discrimination
against men, single women who become pregnant, women
who marry, women with pre-school age children, or the
subclass of black females. Yet, in each of these instances the
courts have drawn on the statute’s general language,
remedial purpose, and principle of non-discrimination to
extend Title VII to the discriminatory policy. See Phillips v.
Martin-Marietta Corp., 400 U.S. 542 (1971); Jacobs v. Martin
Sweets Co., 550 F.2d 364, 371 (6th Cir.), cert. denied, 431 U.S.
917 (1977); Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th
Cir.), cert. denied, 404 U.S. 991 (1971); Diaz v. Pan American
World Airways, Inc., 442 F.2d 385 (5th Cir. 1971); Jeffries v.
Harris County Community Action Assoc., 615 F.2d 1025 (5th
Cir. 1980).
22
The sexual harrassment cases also provide a prime exam-
ple of how courts have refused to give sex the narrow and
traditional interpretation adopted by the Court of Appeals.*®
These decisions firmly establish
that sex discrimination within the meaning of Title VII
is not limited to disparate treatment founded solely or
categorically on gender. Rather, discrimination is sex
discrimination whenever sex is for no legitimate reason
a substantial factor in the discrimination.
Bundy v. Jackson, 641 F.2d 934, 942. The analysis in Barnes v.
Costle, 561 F.2d 983, 994 (D.C. Cir. 1977), aptly applies to
transsexuals:
The statute in explicit terms proscribes discrimination
“because of... sex,” with only narrowly defined excep-
tions completely foreign to the situation emerging here.
The legislative history similarly discloses a congressional
purpose to outlaw any and all sex-based discrimination,
equally with any other form of discrimination which
Title VII condemns. [emphasis added]
In reaching its conclusion, the D.C. Circuit was guided by
the overall purpose of the Act and refused “to speculate as to
whether Congress envisioned the particular type of activity”
as prohibited by Title VII. Ja.
The sexual harrassment and “sex plus” cases reveal why a
broad and liberal approach to interpreting Title VII is
required:
(Title VII] evinces a congressional! intention to define
discrimination in the broadest possible terms. Congress
chose neither to enumerate specific discriminatory prac-
tices, nor to elucidate in extenso the parameter of such
nefarious activities. Rather, it pursued the path of
* See, e.g., Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); Tomkins
v. Public Service Electric & Gas Co., 568 F.2d 1044 (3rd Cir. 1977);
Wright v. Methodist Youth Services, Inc., 511 F. Supp. 307 (N.D. Il.
1981).
Ne eee | manna et SO ne Re ON ers Ei SL Lema XS
23
wisdom by being unconstrictive, knowing that constant
change is the order of our day and that the seemingly
reasonable practices of the present can easily become the
injustices of the morrow.
Rogers v. Equal Employment Opportunity Commission, 454 F.2d
234, 238 (5th Cir.), cert. denied, 406 U.S. 957 (1972).
Faced with congressional silence on the meaning of “sex”
for purposes of Title VII, the District Court correctly gave
the term a liberal and scientific interpretation which is true
to the broad purpose of Title VII (C-6-8). Based on the
extensive medical record before it, its observations of
Ms. Ulane in the courtroom and on the witness stand, and
taking guidance from the social policy of the State of IIli-
nois, the District Court found:
that sex is not a cut-and-dried matter of chromosomes, and
while there may be some argument about the matter in the
medical community, the evidence in this record satisfies
me that the term, “sex,” as used in any specific sense and
as used in the statute can be and should be reasonably
interpreted to include among its denotations the question
of sexual identity and that, therefore, transsexuals are
protected by Title VII. [C-7-8)
The District Court concluded that “sex” should not be
limited to “chromosomal sex’’, absent some indication from
Congress that it did not intend to prohibit all forms of sex
discrimination. The language of Title VII is broad enough to
protect an individual who has been discriminated against
because she changed her sex from male to female.
The Court of Appeals’ restrictive interpretation is based,
in part, on its conclusion that Congress’ refusal to extend
Title VII protection to homosexuals “indicates that the
phrase in the Civil Rights Act prohibiting discrimination on
the basis of sex should be given a narrow, traditional inter-
pretation, which would also exclude transsexuals” (A-9). The
Court of Appeals has erroneously lumped together dis-
crimination against transsexuals with discrimination
24
against homosexuals. Transsexuals are people whose
anatomic sex at birth is different from their psychological
sex. The purpose of surgery is to align the two. Karen Ulane
was discriminated against because she did just this, she
changed her gender from male to female. Eastern valued
this employee as a man. It rejected her as a woman. Noth-
ing changed but her gender. Discrimination against
homosexuals, on the other hand, is based on an individual’s
sexual practices, something wholly unrelated to gender.
Title VII’s general prohibition against sex-based dis-
crimination protects an individual fired for reasons having
nothing to do with merit and everything to do with gender.
A condition of Ms. Ulane’s continued employment as a pilot
for Eastern was that she remain a man. This is sex
discrimination.
25
CONCLUSION
The Court should grant the petition for certiorari in order
to protect the integrity of the fact-finding role of the District
Court and to ensure that all citizens enjoy the protection of
Title VII's prohibition against sex discrimination.
Respectfully submitted,
DEAN A. DickKIE
30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
(312) 207-1000
Attorney for Petitioner
Of Counsel:
Fay CLAYTON
Brian D. Rocne
SACHNOFF WEAVER & RUBENSTEIN, LTD.
30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
February 14, 1985
APPENDIX A
Opinion by Judge Wood
JUDGMENT— ORAL ARGUMENT
In the
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
August 29, 1984.
Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. HARLINGTON Woop, JR., Circuit Judge
Hon. EDWARD DUMBAULD, Senior District Judge*
KAREN FRANCES Augeek fem the Vaind
Plaintiff-A ppellee, States District Court for
No. 84-1431 The Northern District
v of Illinois, Eastern
- -_ r sd Division
EASTERN AIRLINES, INC., A Delaware
This cause was heard on the record from the United States
District Court for the Northern District of Illinois, Eastern
Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND
ADJUDGED by this Court that the judgment of the said
District Court in this cause appealed from be, and the same
is hereby, REVERSED, with costs, and the case is
REMANDED, in accordance with the opinion of this Court
filed this date.
*The Honorable Edward Dumbauld, Senior District Judge of
the United States District Court for the Western District of Penn-
sylvania, is sitting by designation.
APPENDIX A
dn the
United States Court of Appeals
No. 84-1431
KAREN FRANCES ULANE,
Plaintiff-Appelilee,
v.
EASTERN AiR LINES, INC., a Delaware corporation,
Defendant-Appeliant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 81 C 441l—John F. Grady, Judge.
ARGUED JUNE 5, 1984—DECIDED AUGUST 29, 1984
Before CUMMINGS, Chie Judge, Woon, Circuit Judge,
and DUMBAULD, Senior Judge.*
Woon, Circuit Judge. Plaintiff, as Kenneth Ulane, was
hired in 1968 as a pilot for defendant, Eastern Air Lines,
ed 4 timely charge of sex discrimination withthe Equa
“ sex discrimination with the Equai
ege that Ulane's discharge violated Title VII
United States District Court for the Western District of Penn.
sylvania, is sitting by designation.
2 No. 84-1431
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e—2000e-17
(1982): Count I alleges that Ulane was discriminated
against as a female; Count II alleges that Ulane was dis-
criminated against as a transsexual. The judge ruled in
favor of Ulane on both counts after a bench trial. The
court awarded her? reinstatement as a flying officer with
full seniority and back pay, and attorneys’ fees. This cer-
tified appeal followed pursuant to Federal Rule of Civil
Procedure 54(b).
FACTUAL BACKGROUND
Counsel for Ulane opens their brief by explaining: “This
is a Title VII case brought by a pilot who was fired by
Eastern Airlines for no reason other than the fact that
she ceased being a male and became a female.” That ex-
planation may give some cause to pause, but this briefly
is the story.
Ulane became a licensed pilot in 1964, serving in the
United States Army from that ‘time until 1968 with a
record of combat missions in Vietnam for which Ulane
received the Air Medal with eight clusters. Upon dis-
charge in 1968, Ulane began flying for Eastern. With
Eastern, Ulane progressed from Second to First Officer,
and also served as a flight instructor, logging over 8,000
flight hours.
Ulane was diagnosed a transsexual® in 1979. She ex-
plains that although embodied as a male, from early
1 Counts III through IX, which allege violations of 42 U.S.C.
§§ 19853), 1986, 18 U.S.C. § 371 (conspiracy), and 45 U.S.C. § 184
(Railway Labor Act). defamation, and intentional or reckless caus-
ing of emotional and mental distress, have not yet been tried.
2 Since Ulane considers herself to be female, and appears in
public as female, we will use feminine pronouns in referring to her.
3 Transsexualism is a condition that exists when a physiological-
ly normal person (i.e., not a hermaphrodite—a Per whose sex
is not clearly defined due to a congenital condition) experiences
(Footnote continued on following page)
ee i ae oe
No. 84-1431 3
childhood she felt like a female. Ulane first sought psy-
chiatric and medical assistance in 1968 while in the
military. Later, Ulane began taking female hormones as
part of her treatment, and eventually developed breasts
from the hormones. In 1980, she underwent “sex reassign-
ment surgery.’’* After the surgery, Illinois issued a revised
3 continued
discomfort or discontent about nature’s choice of his or her par-
ticular sex and prefers to be the other sex. This discomfort is
generally accompanied by a desire to utilize hormonal, surgical,
and civil procedures to allow the individual to live in his or her
referred sex role. The ~~ <7 is appropriate only if the discom-
ort has been continuous for at least two years, and is not due
to another mental disorder, such as schizophrenia. See Testimony
of Dr. Richard Green, expert witness for plaintiff, trial transcript
for Sept. 26, 1983, 10:00 a.m., at 35-37; see ly American
rhe eee Association, Diagnostic and Statistical Manual of Men-
Disorders § 302.5x (3d ed. 1980); Edgerton, Langman, Schmidt
& Sheppe, P ical Considerations of Gender Reassignment
Surgery, 9 Clinics in Plastic Surgery 355, 357 (1982); Comment,
The Law and Transsexualism: A Faltering Response to a Con-
ceptual Dilemma, 7 Conn. L. Rev. 288, 288 n.1 (1975); Comment,
Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cor-
nell L. Rev. 963, 963 n.1 (1971).
To be distinguished are homosexuals, who are sexually attracted
°_——- of the same sex, and transvestites, who are generally
e heterosexuals who cross-dress, i.e., dress as females, for sex-
ual arousal rather than social comfort; both homosexuals and
transvestites are content with the sex into which they were born.
See Diagnostic and Statistical Manual of Mental Disorders
§ 302.30; Wise & Meyer, Transvestism: Previous Findings and
New Areas for Inquiry, 6 J. of Sex & Marital on 116-20
(1980); Comment, 7 Conn. L. Rev., supra, at 292; Comment, 56
Cornell L. Rev., supra, at 963 n.3.
* Sex reassignment surgery for male-to-female transsexuals “‘in-
volves the removal of the external male sexual organs and the
construction of an artificial vagina by plastic surgery. It is sup-
plemented by hormone treatments that facilitate the c in
secon sex characteristics,” such as breast development. Com-
ment, Cornell L. Rev., supra note 3, at 970 n.37 (citations
omitted); see also Jones, Operative Treatment of the Male
Transsexual, in Transsexualism and Sex Reassignment 313, 314-16
(Footnote continued on following page)
4 No. 84-1431
birth certificate indicating Ulane was female, and the
FAA certified her for flight status as a female. Ulane’s
own physician explained, however, that the operation
would not create a biological female in the sense that
Ulane would “have a uterus and ovaries and be able to
bear babies.” Ulane’s chromosomes,5 all concede, are unaf-
fected by the hormones and surgery. Ulane, however,
claims that the lack of change in her chromosomes is
irrelevant. Eastern was not aware of Ulane’s transsex-
uality, her hormone treatments, or her psychiatric counsel-
ing until she attempted to return to work after her
reassignment surgery. Eastern knew Ulane only as one
of its male pilots.
4 continued
(R. Green & J. Money eds. 1969); Stoller, Near Miss: “Sex
Change” Treatment and Its Evaluation, in Eating, Sleeping, and
Sexuality 258, 259 (M. Zales ed. 1982); Shaw, Sex-change Capital:
~—- : a a Top Draw, Chicago Tribune, Aug. 14, 1984, § 5,
at 1, 3, col. 3.
5 The normal individual has 46 chromosomes, two of which
designate sex. An XX configuration denotes female; XY denotes
male. These chromosome patterns cannot be surgically altered.
Wise, Transsexualism: A Clinical Approach to Gender Dysphoria,
1983 Medic. Trial Tech. Q. 167, 170.
6 Biologically, sex is defined by chromosomes, internal and ex-
ternal genitalia, hormones, and gonads. Wise, supra note 5, at 169.
Chromosomal sex cannot be changed, and a uterus and ovaries
cannot be constructed. This leads some in the medical profession
to conclude that hormone treatments and sex reassignment surgery
can alter the evident 7% ** an individual, but cannot chan
the individual’s innate sex. , ¢.g., Wise, supra note 5, at 170;
Stoller, supra note 4, at 273; Comment, Cornell L. Rev., supra
note 3, at 970 n.37. Others disagree, arguing that one must look
beyond chromosomes when determining an individual’s sex and
consider factors such as psychological sex or assumed sex role.
Comment, 7 Conn. L. Rev., supra note 3, at 290-91 & n.6, 292
oe sex may be most important factor); Comment, Cor-
nell L. Rev., supra note 3, at 965. These individuals conclude that
st-operative male-to-female transsexuals do in fact qualify as
emales and are not merely “facsimiles.” E.g., Testirnony of Dr.
Richard Green, expert witness for plaintiff, trial transcript for
Sept. 27, 1983, 10:35 a.m., at 226 & 252.
e ee i ere ae
No. 84-1431 5
LEGAL ISSUES
A. Title VII and Ulane as a Transsexual.
The district judge first found under Count II that
Eastern discharged Ulane because she was a transsex-
ual, and that Title VII prohibits discrimination on this
basis.7 While we do not condone discrimination in any
form,® we are constrained to hold that Title VII does not
protect transsexuals, and that the district court’s order
on this count therefore must be reversed for lack of juris-
diction.
Section 2000e-2(aX1) provides in part that:
(a) It shall be an unlawful employment practice for
an employer—
(1) to... discharge any individual ... because
of such individual’s ... sex ....
Other courts have held that the term “sex” as used in
the statute is not synonymous with “sexual preference.”
See, e.g., Sommers v. Budget Marketing, Inc., 667 F.2d
748, 750 (8th Cir. 1982) (per curiam); De Santis v. Pacific
Telephone & Telegraph Co., 608 F.2d 327, 329-30 (9th Cir.
1979); Smith v. Liberty Mutual Insurance Co., 569 F.2d
325, 326-27 (5th Cir. 1978); Holloway v. Arthur Andersen
& Co., 566 F.2d 659, 662 (9th Cir. 1977); Voyles v. Ralph
K. Davies Medical Center, 403 F. Supp. 456, 457 (N.D.
Cal. 1975), aff'd mem., 570 F.2d 354 (9th Cir. 1978). The
7 Not all of the experts who testified agreed that Ulane is a
transsexual. (Although doctors attempt to perform sex reassign-
ent surgery only on transsexuals—as opposed, for example, on
uransvestites or schizophrenics, that an individual has undergone
such surgery is not determinative of whether he or she is a true
transsexual. See supra note 3 and sources cited therein.) If Ulane
is not a transse , then she is a transvestite. Even in the trial
judge’s view, transvestites are not covered by Title VII.
8 Eastern presented a substantial amount of testimony and
evidence at trial to prove that Ulane’s discharge was not due to
discrimination against her either as a transsexual or as a female,
but we need not reach that issue.
6 No. 84-1431
district court recognized this, and ed that homosex-
uals and transvestites do not enjoy Title VII protection,
but distinguished transsexuals as persons who, unlike
homosexuals and transvestites, have sexuai identity prob-
lems; the judge agreed that the term “sex” does not com-
prehend “sexual preference,” but held that it does com-
or me “sexual identity.” The district judge based this
olding on his finding that “sex is not a cut-and-dried
matter of chromosomes,” but is in part a psychological
question—a question of self-perception; and in part a social
matter—a question of how society perceives the individual.®
The district judge further supported his broad view of Title
VII’s coverage by recognizing Title VII as a remedial
statute to be liberally construed. He concluded that it is
reasonable to hold that the statutory word “sex’’ literal-
ly and scientifically applies to transsexuals even if it does
not apply to homosexuals or transvestites.1° We must dis-
agree.
Even though Title VII is a remedial statute, and even
though some may define “‘sex”’ in such a way as to mean
an individual’s “sexual identity,” our responsibility is to
interpret this congressional legislation and determine what
Congress intended when it decided te outlaw discrimina-
tion based on sex. See United States Department of Labor
v. Forsyth Energy, Inc., 666 F.2d 1104, 1107 (7th Cir.
1981). The district judge did recognize that Congress
manifested an intention to exclude homosexuals from Title
VII coverage. Nonetheless, the judge defended his con-
® The judge did recognize that there may be some argument in
the alia community about the definition of sex that he adopted.
See, e.g., supra notes 5 & 6.
10 Judge Grady explained:
_ I have no problem with the idea that the statute was not
intended and cannot reasonably be argued to have been in-
tended to cover the matter of sexual preference, the prefer-
ence of a sexual partner, or the matter of sexual gratification
from wearing the clothes of the opposite sex. It seems to me
an altogether different question as to whether the matter of
sexual identity is comprehended by the word, “sex.”
Be ne
No. 84-1431 7
clusion that Ulane’s broad interpretation of the term
“sex” was reasonable and could therefore be applied to
the statute by noting that transsexuals are different than
homosexuals, and that Congress never considered whether
it should include or exclude transsexuals. While we
recognize distinctions among homosexuals, transvestites,
and transsexuals, we believe that the same reasons for
holding that the first two groups do not enjoy Title VII
coverage apply with equal force to deny proteciion for
transsexuals.
It is a maxim of statutory construction that, unless
otherwise defined, words should be given their ordinary,
common meaning. Perrin v. United States, 444 U.S. 37,
42 (1979). The phrase in Title VII prohibiting discrimina-
tion based on sex, in its plain meaning, implies that it
is unlawful to discriminate against women because they
are women and against men because they are men. The
words of Title VII do not outlaw discrimination against
a person who has a sexual identity disorder, 1.e., a per-
son born with a male body who believes himself to be
female, or a person born with a female body who believes
herself to be male; a prohibition against discrimination
based on an individual’s sex is not synonymous with a
prohibition against discrimination based on an individual’s
sexual identity disorder or discontent with the sex into
which they were born. The dearth of legislative history
on section 2000e-2(aX1) strongly reinforces the view that
that section means nothing more than its plain language
implies.
When Congress enacted the Civil Rights Act of 1964
it was primarily concerned with race discrimination. “Sex
as a basis of discrimination was added as a floor amend-
ment one day before the House approved Title VII,
without prior hearing or debate.” Holloway v. Arthur
Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977) (cita-
tions omitted); Deve ts in the Law—Employment
Discrimination and Title VII of the Civil Rights Act of
1964, 84 Harv. L. Rev. 1109, 1167 (1971). This sex amend-
ment was the gambit of a congressman seeking to scut-
8 No. 84-1431
tle adoption of the Civil Rights Act. The ploy failed and
sex discrimination was abruptly added to the statute’s
prohibition against race discrimination. See Bradford v.
Peoples Natural Gas Co., 60 F.R.D. 432, 434-35 & n.1
(W.D. Pa. 1978).
The total lack of legislative history supporting the sex
amendment coupled with the circumstances of the amend-
ment’s adoption clearly indicates that Congress never con-
sidered nor intended that this 1964 legislation apply to
anything other than the traditional concept of sex. Had
Congress intended more, surely the legislative history
would have at least mentioned its intended broad cove
of homosexuals, transvestites, or transsexuals, and would
no doubt have sparked an interesting debate. There is not
the slightest suggestion in the legislative record to sup-
port an all-encompassing interpretation.
Members of Congress have, moreover, on a number of
occasions, attempted to amend Title VII to prohibit dis-
crimination based upon “affectational or sexual orienta-
tion.”?! Each of these attempts has failed. While the
proposed amendments were directed toward homosexuals,
see, e.g., Civil Rights Act Amendments of 1981: Hear-
ings on H.R. 1454 Before the Subcomm. on Employment
Opportunities of the House Comm. on Education and
Labor, 97th Cong., 2d Sess. 1-2 (1982) (statements of Rep.
Hawkins, chairman of subcommittee, and Rep. Weiss,
N.Y., author of bill); Civil Rights Amendments Act of
1979: Hearings on H.R. 2074 Before the Subcomm. on
Employment Opportunities of the House Comm. on
11 £.9., 94th Congress: H.R. 166, 94th Cong., 1st Sess. (1975);
H.R. 2667, 94th Cong., 1st Sess. (1975); H.R. 5452, 94th Cong.,
Ist Sess. (1975); 95th Congress: H.R. 451, 95th Cong., Ist Sess.
(1977); H.R. 775, 95th Cong., Ist Sess. (1977); H.R. 2998, 95th
Cong., 1st Sess. (1977); H.R. 4794, 95th Cong., lst Sess. (1977);
H.R. 5239, 95th Cong., Ist Sess. (1977); H.R. 8268, 95th Cong.,
Ist Sess. (1977); H.R. 8269, 95th Cong., 1st Sess. (1977); 96th Con-
gress: H.R. 2074, 96th Cong., 2d Sess. (1980); 97th Congress: H.R.
1454, 97th Cong., 2d Sess. (1982).
_—
No. 84-1431 9
Education and Labor, 96th Cong., 2d Sess. 6 (1980)
(statements of Rep. Hawkins, chairman of subcommittee,
and Rep. Weiss, N.Y., coauthor of bill), their rejection
strongly indicates that the phrase in the Civil Rights Act
prohibiting discrimination on the basis of sex should be
given a narrow, traditional interpretation, which would
also exclude transsexuals. Furthermore, Congress has con-
tinued to reject these amendments even after courts have
specifically held that Title VII does not protect transsex-
uals from discrimination. Compare H.R. 1454, 97th Cong.,
2d Sess. (1982) (hearing held on Jan. 27, 1982) with Som-
mers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th
Cir. Jan. 8, 1982) (per curiam); Holloway v. Arthur
Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977);
Powell v. Read’s, Inc., 436 F. Supp. 369, 371 (D. Md.
1977); Grossman v. Board of Education, 11 Fair Empl.
Prac. Cas. (BNA) 1196, 1199 (D.N.J. 1975), aff'd mem.,
538 F.2d 319 (3d Cir.), cert. denied, 429 U.S. 897 (1976);
Voyles v. Ralph K. Davies Medical Center, 403 F. Supp.
456, 457 (N.D. Cal. 1975), aff'd mem., 570 F.2d 354 (9th
Cir. 1978); see also United States v. PATCO, 653 F.2d
1134, 1138 (7th Cir. 1981) (Congress is presumed to know
the law and judicial interpretations of it); United States
v. Ambrose, Nos. 83-1213 to 83-1221, 83-1291, slip op. at
15 (7th Cir. July 17, 1984) (Wood, J., concurring and
dissenting) (same).
Although the maxim that remedial statutes should be
liberally construed is well recognized, that concept has
reasonable bounds ene which a rr: cannot go
without transgressing the prerogatives of Congress. in
a view, to inclurle cceainads within the reach of Title
VII far exceeds mere statutory interpretation. Congress
had a narrow view of sex in mind when it passed the
Civil Rights Act, and it has rejected subsequent at-
tempts to broaden the scope of its original interpretation.
For us to now hold that Title VII protects transsexuals
would take us out of the realm of interpreting and review-
ing and into the realm of legislating. See Gunnison v.
Commissioner, 461 F.2d 496, 499 (7th Cir. 1972) (it is for
10 No. 84-1431
the legislature, not the courts, to expand the class of peo-
ple - ae by a statute). This we must not and will
not do.
Congress has a right to deliberate on whether it wants
such a broad sweeping of the untraditional and unusual
within the term “sex” as used in Title VII. Only Con-
gress can consider all the ramifications to society of such
a broad view. We do not believe that the interpretation
of the word “sex” as used in the statute is a mere
matter of expert medical testimony or the credibility of
witnesses produced in court. Congress may, at some
future time, have some interest in testimony of that type,
but it does not control our interpretation of Title VII
based on the legislative history or lack thereof. If Con-
gress believes that transsexuals should enjoy the protec-
tion of Title VII, it may so provide. Until that time,
however, we decline in behalf of. the Congress to judicially
expand the definition of sex as used in Title VII beyond
its common and traditional interpretation.
Our view of the application of Title VII to this t
of case is not an original one. Sommers v. Budget
Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per
curiam), and Holloway v. Arthur Andersen & Co., 566
F.2d 659, 662-63 (9th Cir. 1977), the only two circuit court
cases we found that have specifically addressed the issue,
both held that discrimination against transsexuals does not
fall within the ambit of Title VII.12 In Sommers, Budget
Marketing fired an anatomical male who claimed to be
female once Budget Marketing discovered that he had
12 For examples of district courts that have refused transsexuals
Title VII protection, see T v. EEOC, 25 Empl. Prac. Dec.
(CCH) 431,638, at 19,732-33 (E.D. Wis. 1980); Powell v. Read’s,
Inc., 4386 F. Supp. 369, 371 (D. Md. 1977); Grossman v. Board of
Education, 11 Fair wr Prac. Cas. (BNA) 1196, 1199 (D.N.J.
1975), aff'd mem., 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S.
897 (1976); Voyles v. Ralph K. Davies Medical Center, 403 F.
Sup ; 456, 457 (N.D. Cal. 1975), aff'd mem., 570 F.2d 354 (9th Cir.
BEST AVAILABLE COPY ©
=
No. 84-1431 11
misrepresented himself as female when he applied for the
job. In Holloway, Arthur Andersen, an accounting firm,
dismissed the plaintiff after he informed his superior that
he was undergoing treatment in preparation for sex
change surgery. We agree with the Eighth and Ninth Cir-
cuits that if the term ‘sex’ as it is used in Title VII is
to mean more than biological male or biological female,
the new definition must come from Congress.
B. Title VII and Ulane as a Female.
The triai judge originally found only that Eastern had
discriminated against Ulane under Count II as a trans-
sexual. The judge subsequently amended his findings to
hold that Ulane is also female and has been discriminated
against on this basis. Even if we accept the district
judge’s holding that Ulane is female, he made no factual
findings necessary to support his conclusion that Eastern
discriminated against her on this basis. All the district
judge said was that his previous “findings and conclusions
concerning sexual discrimination against the plaintiff by
Eastern Airlines, Inc. apply with equal force whether
plaintiff be regarded as a transsexual or a female.” This
is insufficient to support a finding that Ulane was dis-
criminated against because she is female since the
district judge’s previous findings all centered around his
conclusion that Eastern did not want “[a] transsexual in
the cockpit” (emphasis added).
Ulane is entitled to any personal belief about her sex-
ual identity she desires. After the surgery, hormones, ap-
arance changes, and a new Illinois birth certificate and
PAA pilot’s certificate, it may be that society, as the trial
judge found, considers Ulane to be female. But even if
one believes that a woman can be so easily created from
what »emains of a man, that does not decide this case.
If Eastern had considered Ulane to be female and had
discriminated against her beceuse she was female (.e.,
Eastern treated females less favorably than males), then
the argument might be made that Title VII applied, c/-
12 No. 84-1431
Holloway v. Arthur Andersen, 566 F.2d at 664 (although
Title VII does not prohibit discrimination against trans-
sexuals, ‘‘transsexuals claiming discrimination because of
their sex, male or female, would clearly state a cause of
action under Title VII’’) (dicta), but that is not this case.
It is clear from the evidence that if Eastern did discrimi-
nate against Ulane, it was not because she is female, but
because Ulane is a transsexual!%—a biological male who
takes female hormones, cross-dresses, and has surgically
altered parts of her body to make it appear to be female.
Since Ulane was not discriminated against as a female,
and since Title VII is not so expansive in scope as to pro-
hibit discrimination against transsexuals, we reverse the
order of the trial court and remand for entry of judgment
in favor of Eastern on Count I and dismissal of Count II.
REVERSED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
13 Because of our holding in section A, however, we need not
and do not decide whether Eastern did actually discriminate
against Ulane because of her transsexuality.
USCA 40227--Midwest Law Printing Co., Inc., Chicago—8-29-84—400
APPENDIX B
aed we nme
. a —_
B-1
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAREN FRANCES ULANE, )
Plaintiff
v. . NO. 81 C 4411
EASTERN AIRLINES, INC., et al.,
Defendants.
-
FINAL JUDGMENT ORDER PURSUANT TO RULE 54(b)
For the reasons explained on December 28, 1983, in the
court’s oral findings of fact and conclusions of law, and the
supplemental Memorandum Opinion entered this date, the
court finds the issues in favor of the plaintiff and against the
defendant Eastern Airlines on Counts I and II of the com-
plaint. The plaintiff is hereby awarded the following relief:
MONETARY RELIEF
Salary $166,476
Set Offs:
Loss of license, benefits paid by East-
ern during back-pay period (16,277)
Plaintiff’s earnings during back-pay
period (9,709)
BACK-PAY $140,490
Interest at 8 per cent per annum 15,839
BACK-PAY PLUS INTEREST $156,329
Reimbursement for out-of-pocket expenses;
life and health insurance premiums;
dental care; and airline tickets
TOTAL MONETARY AWARD
THROUGH DECEMBER 31, 1983 $158,590
2,261
B-2 B-3
REINSTATEMENT i which multiple claims are presented and in which multiple
Plaintiff shall be reinstated as of the date of her discharge, | parties are involved; that the determination of the remaining
with the following benefits: | claims will be greatly facilitated, and as a practical matter
) perhaps even obviated, by a decision on appeal from the
Pension Contributions | foregoing final judgment on Counts I and II; and, accord-
ingly, there is no just reason for delaying the entry of final
judgment on Counts I and II or for delaying an appeal from
that judgment.
Eastern shall make contributions in plaintiff’s name
to pension plans “A” and “B” according to the terms of
the contract between the pilots and Eastern Airlines
(“the contract”), based on the “salary of record” retroac- |
tive to April 24, 1981. Eastern is not required to DATED: FEB. 8, 1984
reimburse plaintiff’s pension plans for the amounts she
has withdrawn from the plans since April 24, 1981, and
will not incur any other liability as a result of plaintiff’s | ENTER: /s/ JOHN F. GRADY
withdrawals. |
Sick Leave
Plaintiff’s sick leave bank shall be credited with sick
leave accrued at a rate of three days per month, retroac- |
tive to April 24, 1981, as provided in Section 38(A)(2) of
the contract. )
United States District Judge
Vacation
Plaintiff’s vacation bank shall be credited as provided
in Section 16 of the contract.
;
Debentures
)
Plaintiff shall be awarded debentures and any other
benefits which are part of any “give-back” programs in )
effect during the back-pay period. .
Seniority
Plaintiff’s seniority shall be reinstated and shall
accrue to the position she would have had had she not
been terminated, and as provided in the contract. |
The court expressly directs that final judgment be entered
in favor of the plaintiff and against the defendant Eastern
Airlines as aforesaid. The court finds that this is a case in | 3
APPENDIX C
mr oe ROT Rn oe Ba RR NT RN
BRN D> Or eR Orr
C-1
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAREN FRANCES ULANE,
v.
EASTERN AikLINES, INC.,
a Delaware corporation,
a
Plaintiff
Docket No. 81 C 4411
Chicago, Illinois
- December 28, 1983
FRANK BORMAN, THOMAS R. 10:25 a.m.
BUTTION, DAVID P. MILLETT
and ROBERT SHIPNER,
Defendanis.
4
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORAB
LE JOHN F. GRADY, Judge.
TRANSCRIPT ORDERED BY: Mr. DEAN DICKIE
APPEARANCES:
For the Plaintiff:
Mr. DAVID M. BROWN
SACHNOFF,
WEAVER& RUBENSTEIN, LTD.
One IBM Plaza, Suite 4700
Chicago, Illinois 60611, by
Mr. DEAN DICKIE
Mr. BRIAN D. ROCHE
Ms. FAY CLAYTON
For the Defendants:
CONKLIN & ADLER, LTD.
100 West Grand Avenue
Chicago, Illinois 60610, by
Ms. CATHERINE TINKER
GAMBRELL & RUSSELL
400 First Atlanta Tower
Atlanta, Georgia 30383, by
Mr. DAviD M. BRown
Court Reporter: LAURA M. BRENNAN
219 South Dearborn
Street, Room 1918
Chicago, Illinois 60604
(The following proceedings were had in open Court:)
MR. DICKIE: Good morning, your Honor.
THE COURT: Good morning.
THE CLERK: 81 C 411, Ulane v. Eastern Airlines, case
on trial.
THE COURT: I will give you my findings of fact and
conclusions of law.
The threshold issu before the Court is whether Title VII
of the Civil Rights Act of 1964 applies to transsexuals. The
statutory language in Title 42, Section 2000e-2(a) provides
that:
“It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any
individual or otherwise to discriminate against any
individual with respect to his compensation, terms, con-
ditions or privileges of employment because of such
individual’s race, color, religion, sex, or national origin.”
So the specific question before the Court is whether the
phrase, “because of the individual’s sex,” encompasses a
person such as the plaintiff who alleges that she is a
C-3
transsexual or, alternatively, that having gone through sex
reassignment surgery, she is now no longer a man but a
woman.
The legislative history of the statute I have just quoted is
hardly a gold mine of information. It is summarized in the
case of Holloway v. Arthur Andersen & Company, 566 F. 2d 659
at page 662, a Ninth Circuit case, which I cited in denying
the motion to dismiss. The Court there said:
“There is a dearth of legislative history on Section
2000e-2(a)(1) which was enacted as Section 703(a)(1) of
the Civil Rights Act of 1964. The major concern of
Congress at the time the Act was promulgated was race
discrimination. Sex as a basis of discrimination was
added as a floor amendment one day before the House
approved Title VII and without prior hearing or
debate.”
Well, those who have looked a little further into the
matter know that this amendment introducing sex into the
picture was a gambit of a Southern senator who sought
thereby to scuttle the whole Civil Rights Act, and, much to
his amazement and no doubt undying disappointment, it did
not work. We not only got an act including race discrimina-
tion, which he had sought to bar, but we got sex as well. The
question we are confronting here today is: What did we get
when we got sex?
I have previously held in denying defendants’ motion to
dismiss that I believed the complaint adequately alleged that
the discharge was related to sex or had something to do with
sex. I continue to hold that layman’s reaction to the simple
word and to the facts as alleged in the complaint. Most of
the cases and perhaps all of the cases which have addressed
this issue have held that the statute does not apply to
transsexuals. I think, however, all of those cases were
decided on motions to dismiss, and, in any event, I think
none of them was decided on a factual record as complete as
the one we have here.
C-4
Those who argue that the legislative history indicates a
lack of intention on the part of Congress that the Act would
apply to transsexuals cite the unsuccessful attempts to
amend Title VII in later years to include protection for
homosexuals and transvestites. I think that argument is
invalid. There is in the record before us evidence which
makes quite clear that there is a distinction between
homosexuals and transvestites on the one hand and transsex-
uals on the other.
Homosexuals and transvestites are not persons who have
sexual identity problems. They are content with the sex into
which they were born. Transsexuals, on the other hand, are
persons with a problem relating to their very sexual identity
aS a man or a woman. I believe on that basis the situation of
a transsexual is distinguishable.
I have no problem with the idea that the statute was not
intended and cannot reasonably be argued to have been
intended to cover the matter of sexual preference, the prefer-
ence of a sexual partner, or the matter of sexual gratification
from wearing the clothes of the opposite sex. It seems to me
an altogether different question as to whether the matter of
Sexual identity is comprehended by the word, “sex.”
Prior to my participation in this case, I would have had no
doubt that the question of sex was a very straightforward
matter of whether you are male or female. That there could
be any doubt about that question had simply never occurred
to me. I had never been exposed to the arguments or to the
problem. After listening to the evidence in this case, it is
clear to me that there is no settled definition in the medical
community as to what we mean by sex.
I will also put it more tentatively and say that if there is
such a settled definition, it was not adverted to by any of the
experts who testified at this trial. Plaintiff’s witness, Dr.
Green, and other witnesses as well emphasized that sexual
identity is in part a psychological question. That is to Say, it
is a question of one’s own self-perception: How does one
PAD 2g” te tee
C-5
perceive oneself in terms of maleness or femaleness? It is
also a social matter: How does society perceive the
individual?
Such a problem is not unprecedented in the law or in the
specific context of laws prohibiting discrimination. I refer
you to an interesting case decided by my colleague, Judge
Getzendanner, Carrillo v. Illinois Bell Telephone Compuny, 538
F. Supp. 793. The question there was whether Title VII and
42 U.S.C. Section 1981 applied to Hispanics when those
statutes used the word, “race.” The Court there pointed out
that many Hispanics are white in the same sense that non-
Hispanics are white, and yet they perceive themselves to be
of a different race, and they are perceived by some others as
being of a different race.
Judge Getzendanner remarked at page 795:
“On the issue whether discrimination against Hispan-
ics constitutes discrimination based on race or on
national origin, there is a substantial divergence of
opinion. Some Courts have viewed such discrimination
as based solely on national origin and have dismissed
Hispanics’ claims under Section 1981. The trend among
the Judges of this district has been to consider dis-
crimination against Hispanics as racial discrimination.
“The Courts extending Section 1981 to discrimination
against Hispanics have frequently relied on the follow-
ing dicta from Budinsky v. Corning Glass Works, 425 F.
Supp. 786, 788, Western District Pennsylvania, 1977.
The terms, ‘race’ and ‘racial discrimination, are subject
to a commonly accepted, albeit sometimes vague, under-
standing. Those Courts which have extended the cover-
age of Section 1981 have done so on a realistic basis
within the framework of this common meaning and
understanding. On this admittedly unscientific basis,
Hispanic persons and Indians, like blacks, have been
traditional victims of group discrimination, and how-
ever inaccurately or stupidly, are frequently and even
C-6
commonly subjected to a racial identification as non-
whites. There is accordingly both a practical need and a
logical reason to extend Section 1981’s proscription
against exclusively racial employment discrimination to
those groups of potential discriminatees.
“As Judge Moran explained the issue in Aponte,
supra, ‘The plain meaning of the statute, Section 1981,
atternpts to remedy different treatment of whites and
non-whites. Because Hispanics are frequently identified
as non-whites, this Court believes that the scope of
Section 1981 is broad enough to extend to that group.’”
Judge Getzendanner concludes that it is necessary to con-
sider each case on its own merits and determine whether the
particular Hispanic plaintiff was subjected to race dis-
crimination, which would not necessarily be determined by
the actual color of his or her skin.
Now, that case is not, of course, precisely applicable here,
but it is illustrative of the fact that the things we know we
do not necessarily know and iat people sometimes react to
other people according to stereotypes, misperceptions, and
other motivations which are arguably discriminatory and
are arguably redressable under statutes which might not be
thought ordinarily to apply to those situations.
Title VII is a remedial statute which is to be liberally
construed. That fact, I think, is well accepted and not
irrelevant to the inquiry before us. The only defense witness
I can recall who argued with or contradicted the proposition
that sex is at least in part a question of self-perception and a
societal perception was Dr. Wise. He stated flatly that sex is
chromosomal. That creates a dispute in the evidence, but it
is a dispute which I resolve against the defendant because I
do not feel comfortable relying upon the testimony of Dr.
Wise. He was a remarkable witness. He stated that the
plaintiff is beyond a shadow of a doubt a transvestite. This is
a man of science who had never seen the plaintiff, who knew
very little about her, who had not even read all of the records
C-7
pertaining to her, who had read very few of the recent
records which seemed to me to be very important, who had
read some of the literature in the field but stated that he
disagreed with other literature even though he had not read
it, and who stated that he knows beyond a shadow of a
doubt—those are his exact words—that this plaintiff is a
transvestite and not a transsexual.
I have been listening to witnesses for many years, and I
have never heard an expert witness state that he was sure of
anything beyond a shadow of a doubt. That was typical of
Dr. Wise’s testimony. That is the most egregious example
that I can think of from his testimony, but it is by no means
atypical of the tenor of his testimony.
I can tell you quite candidly that I attach no weight
whatever to his testimony and, other things being equal,
would be inclined to believe that the opposite of anything he
testified to would be more probably true than not true. I am
not using that method, however, to arrive at my factual
conclusions in this case because there is an abundance of
other evidence for me to refer to.
On the question of the reaction of society to transsexuals, I
believe the Illinois statute is pertinent. Plaintiff has under
the laws of the State of Illinois been issued a new birth
certificate with a sex designation of female. This is a statute
that was enacted by the people of the State of llinois. This
to me is pretty strong evidence of a social policy in this area.
While I do not agree with plaintiff’s argument that that
statute makes the plaintiff a female or that the statute has
some sort of binding effect in a federal civil rights action, I
do think that the enactment of the statute is a circumstance
which is pertinent to the question of plaintiff’s sexual iden-
tity and the larger question of whether sex is a cut-and-dried
matter of chromosomes.
I find by the greater weight of the evidence that sex is not
a cut-and-dried matter of chromosomes, and that while there
may be some argument about the matter in the medical
C-8
community, the evidence in this record satisfies me that the
term, “sex,” as used in any scientific sense and as used in the
Statute can be and should be reasonably interpreted to
include among its denotations the question of sexual identity
and that, therefore, transsexuals are protected by Title VII.
I will say now as I said at the time I denied the motion to
dismiss that, if I can borrow a phrase, there is not a shadow
of a doubt that Congress never intended anything one way or
the other on the question of whether the term, “sex,” would
include transsexuals. The matter simply was not thought of.
t was not discussed. Nothing was discussed that we have
any record of that would have any relevance to the question
before us. But I believe that working with the word that the
Congress gave us to work with, it is my duty to apply it in
what I believe to be the most reasonable way. I believe that
the term, “sex,” literally applies to transsexuals and that it
applies scientifically to transsexuals. That there is room for
argument on the question does not release me from making a
decision one way or the other, and I have made the decision
which seems to me to be the one most consistent with the
factual record that was developed in this case.
I turn now to the second question, and that is whether the
plaintiff is a transsexual. The defendant argues that she is
not a transsexual, that instead she is a transvestite. If that is
true, she is not protected by the statute.
There are a number of things which persuade me that the
plaintiff is a transsexual. She was found to be such by the
unanimous decision of the Gender Identity Board of the
University of Chicago Medical School. It would be difficult,
I think, to imagine a more prestigious auspices under which
to make a finding of any kind. I am disinclined to overrule
that finding on the basis of the testimony I have heard from
defendants’ witnesses.
I found Dr. Berger a very credible witness. Although he
was called as a witness by the defense, his testimony was, of
course, favorable to the plaintiff. He was her doctor. He was
ee ee eee -
C-9
perhaps primarily in charge of her case. There is no doubt
whatever in Dr. Berger’s mind that plaintiff was and is a
transsexual. I believe that he is eminently qualified to make
that determination. Plaintiff meets the criteria of the DSM
III, the recognized definitional standard for judging
transsexuality.
The defendant argues with these determinations and says
that what has happened here is that plaintiff managed to
persuade these eminent medical practitioners by means of
retrospective distortion. In short, as Dr. Arbitt said in his
deposition, the plaintiff conned her way into the operation. I
understand that it is the defendants’ position in this trial
that some of that distortion may even have been inadvertent
and unconscious, but, nonetheless, it is the defendants’ posi-
tion that in large part the plaintiff through a facile manipu-
lation of these medical persons managed to get for herself
this operation in 1980 that she had been denied in 1970.
Dr. Berger said something that struck me as important.
He was asked whether he relied upon what plaintiff said,
and his response was, “I did not rely only on what she said.”
If anything is true in this cass, that is true.
This takes us to an analysis of the person we are dealing
with. At the time of this irreversible decision, the plaintiff
was 38 years old. She had had two marriages. She had
experienced the pleasure and the happiness to the extent she
was able to do so of marriage and fatherhood and certainly
was well aware of what she would be foresaking irretriev-
ably if she subjected herself to this surgery. She had more
than the ordinary understanding that a patient would have
prior to undergoing surgery. Most of us put outselves in the
hands of doctors and hope for the best. This was not true in
the case of plaintiff. She knew more about this subject
matter from a scientific point of view than many psychia-
trists, if not most psychiatrists, and certainly more than
most physicians.
C-10
Now, the defendant says this is an arrow in its quiver.
Because she knew so much, she was able to dissemble. That
is one interpretation of the evidence, and it is one possibility.
But the inference I draw from plaintiff’s sophistication in
the question of transsexuality and sex reassignment surgery
is that she had a complete, or as complete as can be, under-
standing of the pitfalls of an unsuccessful adjustment to the
life of a female after transsexual surgery. She had
undoubtedly read of those examples, which, in fact, are quite
few, of sex reassignment patients who had decided later that
they made a mistake, and some of them came to a bad end.
The plaintiff is in the upper range of intelligence. She
certainly was capable of understanding all of the implica-
tions of what it was she was doing. Those implications did
not merely extend to her physical well-being, her psychologi-
cal well-being, the question of whether she was going to be
miserable or relatively happy for the remaining 40 or so
years of her life, but they extended to the very subject matter
of this lawsuit. The plaintiff undoubtedly knew that she was
asking for trouble in terms of her continued employment if
she were to have this surgery. That, of course, is why she
did not volunteer this information all these years. She
anticipated the very reaction that did indeed eventuate. She
is accused of having poor judgment in failing to make these
disclosures. I wiil get to that in a while. One cannot accuse
her of being incapable of making fairly accurate predictions
about what was going to happen. She lost her job, and before
she had this surgery, she knew that that was a very good
possibility. She went ahead and had the surgery anyway
knowing that by doing that she would jeopardize something
she truly does love, her job flying an airplane.
Now, I do not know what it would take to convince
defendant that a person who undergoes so radical a
procedure as the one that was involved here, knowing all of
the dangers and all of the trouble that it would and might
involve, did not do it for some ulterior purpose. Defendant
suggests that plaintiff did not really believe she was a
Ob -
C-11
transsexual. She believed she was a transvestite and, there-
fore, was virtually certain to have an unsuccessful, if not
disastrous, post-operative course; she anticipated that she
would lose her job and have to fight in Court to get it back,
with a very uncertain result, and yet for some reason she saw
fit to pull the wool over the doctors’ eyes and have this
operation. That just is not a reasonable proposition, and yet
that is what the defense is in this case in large part.
Harking back to what Dr. Berger said, he said, “No, I do
not rely on just what she says.” What he meant was he
relied on what she did, and I, too, rely on what she did in
order to make my determination as to whether she was a true
transsexual, which, after all, is largely a matter of her own
attitude, her own belief about herself, or whether, on the
other hand, she was not a transsexual but an aging and
dissembling transvestite. I find that she was and is a
transsexual.
The fact that she took a long time to make up her mind
and that there were many changes of mind and reversals and
uncertainties in the process is not, as defendant would have
me believe, evidence of the plaintiff’s insincerity and
evidence of the mistake that plaintiff made in ultimately
having the surgery; rather, it is to me a scenario of what
typically happens in any scientific endeavor. It is a matter
of trial and error, and it is a matter of checking and recheck-
ing. It is a matter of going back to the drawing board.
There was nothing about plaintiff’s history that causes me
to feel that I am in a position to second-guess the University
of Chicago Gender Identity Board on the question of whether
plaintiff was a transsexual and should have had this
operation.
Dr. Berger originally thought plaintiff was not a transsex-
ual but eventually changed his mind. That did not to him
indicate that there was any reason not to have the operation
and not to classify plaintiff as a transsexual, and there is not
anything in the definition of a transsexual which precludes
C-12
the element of doubt; but those doubts were resolved before
the surgery, and I might say that the fact that there were
only seven months of the real life experience as opposed to a
year or two years is to me absolutely immaterial. It was a
matter of economic necessity that the plaintiff proceed with
this matter and get back to work if that were possible.
Waiting any longer would have simply been biding time for
no purpose. All of her physicians were satisfied that she had
spent a sufficient length of time to indicate that she could
successfully live as a woman and that the surgery was
proper.
It seems to me that one of the many unreasonable positions
Eastern takes in this case is that plaintiff did not try to live
as a woman in her job. She had been fired from her job just
as soon as she had the surgery. Apparently Eastern would
have me believe that if Ken Ulane had shown up for work in
a dress and boarded the plane that there would have been no
problem at Eastern. Now, if Eastern means, well, she should
have done it in some other job, she did do it in whatever
other job she could find. How much that proved I do not
know because it was not the job that she hopes to regain.
Where she could have found a job as an airline pilot cross-
dressing as a woman and maintain that job for a period of a
year is something which leaves me totally mystified.
Another consideration on whether plaintiff is a true
transsexual is the post-operative course. It has not been a
long time. It has been three years. To the extent that
plaintiff has had an opportunity to demonstrate a successful
post-operative course, she has done so. Her adjustment has
been remarkably good. She testified without contradiction
that she is a member of her community and is relating well
to other people of both sexes, active in her church, in fact,
vice president of her church having been elected to that
position by co-parishioners who know of her situation. What
more can she do? She is not flying an air liner, but Eastern
will not let her fly an air liner, nor will anybody else in the
present circumstance.
aAnere. 7.
ae i et OR
al
C-13
Eastern’s medical witnesses would never be satisfied with
the post-operative course. If we were in here 30 years from
now and there had not been a single problem that could be
demonstrated, they would still take the position that you
cannot tell about tomorrow.
Another factor which I think is relevant is how plaintiff
appears to other people. I have the psychiatric reports and
the testimony of the various psychiatrists as to how plaintiff
appears to them. She appears to them to be a woman. She
conducts herself as a woman. She dresses as a woman.
There is nothing flamboyant, nothing freakish, about the
plaintiff. It would take an extremely practiced eye, it seems
to me, to detect any difference between the plaintiff and the
biological woman. My observation of her in this courtroom
and on the witness stand leads me t concur with those
witnesses who have said that she appears to be a biological
woman. That, I think, has a bearing on the likelihood of her
successful post-operative course.
It also has a bearing, if seems to me, on the question of
whether she is a transsexual in the first place. There has
been no reversion to any masculine behavior that we have
any knowledge of. Eastern, of course, has studiously avoided
making any examination of the plaintiff, or having her
tested, having their own psychiatrist examine her as they do
in the case of other employees with psychological problems.
They prefer instead to say that the post-operative course is
unknown and that the path is fraught with danger.
The third question is whether the plaintiff was discharged
because of her transsexuality, which is another way of ask-
ing whether she was discharged because of her sex. The
question, of course, is not whether sex was the sole cause of
her discharge. The question is whether it was a motivating
factor but for which she would not have been fired. There
may have been other causes. I will deal with that as I go
along. But assuming there were, if she would not have been
fired but for her transsexuality, the statute has been violated.
C-14
There are two unusual aspects to this case. Well, I suppose
there are many, but two that are immediately relevant to the
present inquiry. The first is that the transsexual surgery is
what triggered the firing. That is the very thing that is in
issue in the case that is undeniably the initial occasion for
the inquiry which led to the discharge. Plaintiff had been
employed by Eastern as an airline pilot for 12 years and had
performed successfully. As Captain Causey said, she was
better than an average pilot, and if they are not good, they
do not keep them. So in saying that she was better than
average, that means she was better than good.
The first inkling of any discharge was when she had this
surgery. So that differentiates this case from the usual Title
VII case where the defendant says there were many things
in the background of this employee which explain the dis-
charge other than race or sex or whatever might be involved.
Here there is not anything in the background other than the
matters which first arose when plaintiff had the sex reassign-
ment surgery.
The second unusual feature of this case is that the dis-
charge was managed and coordinated by the defendant’s
legal department, which carefully drafted the two discharge
letters in an obvious attempt to avoid liability under the sex
discrimination law. You had here a filtering process that
you do not ordinarily have when a disciplinary action is
taken against an employee. There is usually a foreman
without a lawyer at his elbow who does the dastardly deed,
and then we argue about why he did it. Here the lawyers
were in charge from day one and screened everything that
happened, in fact, literally pulled the strings throughout the
entire case.
I refer to the lawyers in Eastern’s legal department. I
have nothing but admiration for the conduct of Eastern’s
trial counsel in this case.
The defendant has attempted to articulate non-dis-
criminatory reasons which, unless pretextual, would justify
Dettingen aa
C-15
the firing. What I want to do now is to take the two
discharge letters and go over them item by item to see
whether or not plaintiff has proved in each instance by the
greater weight of the evidence that the particular reason was
pretextual.
Turning to the first discharge letter dated April 24th,
1981, the first reason was that the continued employment of
plaintiff as a pilot was inconsistent with the safety consider-
ations which underlie the so-called coordinated crew concept
of Eastern. The law requires, first of all, that the defendant
articulate a reason for the discharge. I do not believe that
the defendant has even articulated a rational reason for the
discharge. Articulate means more than simply to recite by
rote; it means to state in a comprehensible and rational way
so that the meaning of the statement can be understood.
The question at issue here is the relationship of the plain-
tiff’s transsexuality to any legitimate safety consideration.
It is that relationship which first has to be articulated, and
then we get to the question of whether the articulation is a
pretext. In my view, we do not even get past the first hurdle
in this case.
You will recall how I tried to have Dr. Millett and Captain
Causey explain to me what Eastern means by this safety
consideration in relation to the coordinated crew concept.
Those questions were not in the script, and they were not
very good at ad libbing. As I sit here now, I still do not know
what any such actual relationship could be. We broke it
down a little further into the question of trust. Trust about
what? What did I get but more coordinated crew concept,
underlying psychological problems, pat phrases which have
been programmed into the defense in this case but which
have no factual basis.
Eastern went out of its way not to learn whatever could be
learned in plaintiff’s favor on the question of safety. Its
primary source of information was a psychiatrist who has
had absolutely no experience with adult transsexuals and
C-16
who continues to this day to be largely ignorant of that area
of psychiatry, and I refer to Dr. Kelly.
Dr. Millett, who knows nothing about the subject, talked to
Dr. Kelly, who knows next to nothing about the subject, and
got from Dr. Kelly the name of Dr. Meyer, who knows a lot
about the subject, but who in a fairly short telephone conver-
sation with Dr. Millett, if it took place, could not have told
Dr. Millett that plaintiff constituted a danger in the cockpit
of an airplane. There is not even any such contention. The
only contention is that Dr. Meyer said that the surgery was
still experimental and not a cure for the underlying psycho-
logical problem.
Eastern took it from there and conjured up all sorts of
dangers that inhered in the so-cailed underlying psychologi-
cal problems. It was not even a matter of their putting the
burden of proof on the plaintiff. They never gave plaintiff
any kind of a fair hearing, never gave her any opportunity
to show that they were wrong, or that even if as a general
proposition there might be some reason for concern that that
concern did not apply to her particular situation.
Eastern from the outset here took the attitude that its
mind was made up, and it did not want to be confused with
the facts. It substituted for any kind of investigation worthy
of the name a prejudiced, close-minded pre-determination of
the question of whether plaintiff was suitable to continue in
the cockpit of one of their air liners.
I am not going to go through the testimony of these
witnesses. I merely invite anyone who is curious to read
with attention the testimony of those witnesses who sought
to explain or, I think more properly, who sought to avoid
explaining because they could not explain the relationship
between any legitimate safety concern and plaintiff’s
transsexualism, the plaintiff’s surgery or anything else about
the pleintiff’s medical or psychological condition.
Everybody passed the buck. The legal department wrote
the letter. They did not show up to testify, but Captain
C-17
Buttion said he relied on them to find out whether the drugs
that plaintiff was taking were dangerous. He assumed, testi-
fied Captain Buttion, that the medical department had deter-
mined that the hormones plaintiff was taking were not
approved by the FAA. He relied entirely on the medical
department and on the legal department. The medical
department in turn relied upon the information I have
already described.
The safety concerns that Eastern purports to have been
cognizant of appear to be readily dispelled when confronted
with the facts. I give you a dramatic example: Captain
Shipner. If ever there was a witness who entered this court-
room convinced that plaintiff did not belong in a cockpit, it
was Captain Shipner, who did not make the decision,
incidentally, and by saying he was convinced, I do not mean
to say that Eastern was convinced. Eastern was not con-
vinced at all, but a lot of things that Eastern did have served
to convince some of its employees that there is something
wrong with plaintiff that precludes her from flying. Captain
Shipner testified that he was very concerned about these
hormones that the plaintiff was taking, but then he said:
“Well, if it turned out that those hormones had been
prescribed by a physician, he would have no problem with it
at all.”
I think we could make a believer out of Captain Shipner if
we had a little more time, but Eastern never took the time
and was not interested in taking the time.
Captain Helms, another non-believer, testified that the
reason he was concerned with the plaintiff’s truthfulness and
why he felt that her lack of truthfulness would be devastat-
ing as far as crew coordination was concerned was that she
had been taking drugs which affected her ability to fly. He
said, and I believe this is an exact quote:
“If I knew someone was taking heroin, I would not let
them in the cabin.”
C-18
Now, here is one of the most distinguished captains of
Eastern Airlines who apparentiy believed before he came
into this courtroom that there was a legitimate comparison
between someone who is taking heroin and someone who is
taking the female hormones that the plaintiff was taking.
He went on to say in further testimony that if he knew there
were no side effects or adverse reactions, then it would not
bother him that plaintiff had been taking hormones. He said
that if all plaintiff is taking is Ovulen-21, that changes his
answer altogether as far as his concern about truthfulness on
the question of drugs is concerned.
What would have happened here if instead of taking the
negative ostrich-like position that Eastern took it had taken a
positive constructive attitude toward this problem and
attempted to solve it intelligently by investigation and edu-
cation rather than by denial and pretext? What would have
happened?
I think that the testimony of Captain Lewandowski, who
testified as the plaintiff’s rebuttal witness, is very credible. I
think it speaks extremely well for the character of such a
man to have hefriended plaintiff, taken her into his home,
fully realizing the attitude of Eastern and fully realizing the
attitude of some of the other pilots. That, as I say, reflects
well on his character in my view, and I find him otherwise to
be an extremely credible witness. He said that the present
Situation is that there is a small group of pilots who are dead
set against the plaintiff, and there is a small group like
himself who are very strongly in favor of her. He said that
the vast majority of pilots are waiting to see what happens,
and he believes that they believe in the system. If the
systema represented by the FAA says she is fit to fly, that
would be good enough for them.
That strikes me as credible testimony, far more believable
that the testimony of people like Captain Helms and Captain
Shipner who predict dire consequences should plaintiff
return to the cockpit, but whose testimony falls apart as soon
as you Start confronting them with the facts. I think those
C-19
witnesses, Captain Shipner and Captain Helms, do not take
the attitude: Do not confuse me with the facts. They strike
me as being willing to listen to the facts, and I have no doubt
whatever that that attitude is characteristic of the vast
majority of Eastern pilots who, after all, have to be highly
intelligent and resourceful individuals, and I emphasize the
word, “individuals,” to hold the responsible jobs that they do.
I think if they are given the facts and had they been given
the facts initially, there would have been no problem here.
I conclude that reason number one, first of all, is not
articulated in any sense that I understand that word, but
even if we get over that and get to the question of whether it
is a pretext. It is a sham of the first order.
Let’s go to the second reason; that plaintiff’s first class
medical certificate is not unconditional. Even Dr. Millett
agreed in this courtroom that plaintiff’s certificate is substan-
tially the same as the certificate issued to alcoholics. I so
find. It seems to me substantially identical. Any differentia-
tion that I heard amvunts to a mere quibble.
It is interesting to trace the origin of the requirement that
there be any follow-up at all on plaintiff’s certificate. The
origin was the anticipated unfavorable reaction of the East-
ern crews which might in turn cause emotional problems for
the plaintiff. Here we have Eastern doing its best to drum
up the very kind of adverse crew reaction that motivated the
limitation in the first place, using that limitation as a reason
for disqualifying the plaintiff.
You wil! note that Dr. Haynes before recommending the
follow-up says quite clearly that he knows of no reason at all
that the plaintiff is not qualified to fly the airplane. His
concern is not with any emotional problem the plaintiff
might have if she is left alone but, rather, with some
response that an unfriendly treatment at the hands of fellow
crew members might cause.
C-20
Eastern has not changed its mind about the plaintiff even
though she now has an unrestricted first class medical certifi-
cate. There is no retreat from this particular reason. Dr.
Hutson testified from this stand the other day that the FAA
is wrong. He does not pay any attention to that unrestricted
first class medical certificate. The FAA does not know what
it is doing. It is not following its own rules. Dr. Hutson is
an example of one of the Eastern witnesses who, by his own
admission on the witness stand, could never be convinced by
any evidence whatsoever that plaintiff is fit to fly the air-
plane. I find that reason number two is a pretext.
Reason number three was that surgery does not solve the
underlying psychological problem and that the surgery was
unproven and experimental. We have an articulation prob-
lem again because there is a total failure to relate this
concern to any question of cockpit safety. Let’s assume the
surgery does not work. Let’s assume that it does not do
anything about the underlying transsexuality wrich is the
underlying psychological problem. How does it follow that
plaintiff would be a less safe pilot than she had been for the
preceding 12 years when as a transsexual she safely piloted
Eastern airplanes?
Even Dr. Meyer, who has a jaundiced view of reassign-
ment surgery, Says that on the average the worst that can
happen is that there is no improvement. It does not make
them any better, it does not make them any worse. He tends
to ignore the substantial body of medical literature which
Supports the proposition that sex reassignment surgery has
on the whole been successful in alleviating the anxieties and
the depressions that transsexuals without the surgery fre-
quently have. Perhaps ignore is the wrong word. He simply
disagrees with the conclusions of these other experts in the
field.
Even Dr. Meyer, whose views are certainly in the
minority, does not support the view that an unsuccessful
surgery leaves the patient worse off than he or she was
before the surgery.
C-21
It should be noted that the surgery is not designed to cure
anything. The person after the surgery is still a transsexual.
So it does not cure the transsexuality. It is hoped that the
person will be more comfortable and lead a happier life, but
the most energetic supporter of the surgery would have to
concede that even where that happens, the person who had
the surgery still has an underlying problem. He is walking
around with a sexual situation that he or she was not born
with.
Now, if that is what is meant by not solving the underly-
ing problem, nobody can argue with that. What Eastern
failed to articulate here is what underlying problem there is
other than the mere fact of transsexuality. Try as I might,
try as counsel for the plaintiff might, we could not worm it
out of anybody. I sat and listened to Dr. Kelly for a couple
of hours repeat the same rote response about underlying
psychological problems, the nature of which he does not
know but he is sure exist and he is sure constitute a safety
hazard.
The other thing that I think is important about reason
number three is that Eastern made no effort whatever to
determine what the particular situation was in plaintiff’s
case. They simply did not have enough information to take
the position that they did; namely, that you can categorize
transsexuals across the board as persons who would represent
a safety problem in a stressful situation. That generalization
is no more true of transsexuals than it would be true of
people who are left-handed or who are dyed-in-the-wool
Republicans. It is no escape from that fact to say, “Well, we
just do not know.” Ignorance, prejudice, discrimination, and
hatred have throughout history been justified by, “We do
now know; we cannot take a chance.” I think that one of the
things that Title VII sought to accomplish was the elimina-
tion of that kind of attitude.
This might be a good point for me to comment generally
on the medical witnesses in this case. I went through my
notes last night very carefully, and I did in this case what I
C-22
usually do. I make my own notes of my impressions of the
witnesses as we go along: Are they credible? Do they seem to
me to be telling the truth? Are they reliable? My reaction to
each and every plaintiff’s medical witness was positive. My
reaction to each and every defense medical witness was
negative.
Now, I am considering in that connection Dr. Northrup
and Dr. Berger to be plaintiff’s witnesses even though they
were called by the defendant. There was just a difference in
the caliber of person. Dr. Meyer, Dr. ‘Millett, Dr. Wise, Dr.
Kelly, and Dr. Hutson are, in my view, contemptuous of
transsexuals. There runs through their testimony an intoler-
ance and a prejudice that is palpable.
Dr. Millett, Dr. Kelly, and Dr. Hutson seem to me to have
an additional aspect to their testimony; that is, they
somehow resent the intrusion of a transsexual into the avia-
tion field. They seem to think that the respectability of
aviation is compromised by the presence of a transsexual.
That, incidentally, is an attitude that permeate the tes-
timony of virtually al] the defense witnesses who are associ-
ated with aviation. I find that item number three is a
pretext.
Turning to item four, Eastern says that having plaintiff in
the cockpit would counteract their efforts to assure the public
that airline travel is safe. Well, that argument, of course, is
no better than the proposition that a transsexual in the
cockpit makes airline travel unsafe. It falls with the other
pretexts, and that is what it is. There is no evidence of a lack
of safety. There is no evidence of any rational belief on the
part of Eastern that there is a safety problem.
This is the kind of argument that opponents of civil rights
litigation urged back in those long-ago days when we did not
have anti-discrimination laws. We cannot serve blacks in
this restaurant. Nobody will come in. We cannot employ a
black to drive this bus. Nobody will ride the bus. We sure
C-23
can’t have any blacks carry the mail or work in a depart-
ment store. We will lose customers.
Well, the American public is a lot smarter than the bigots
gave them credit for being, and those predictions did not
prove to be true. I am old enough to remember when there
were no blacks driving buses in Chicago or virtually none, no
black sales clerks in department stores, no black mail car-
riers. We all know the extent to which those jobs have been
opened up to persons of all races and sexes and how much
better a society it has made us and how the insuperable
problems that were supposed to come about just did not
happen. The same thing is going to happen should Karen
Ulane resume her seat in the cockpit, and it will happen
with the help of people of good will like some of the people
who testified here in this courtroom.
Item four is a pretext.
Now, item five should probably be included as part of the
hand-out material for any seminar on discrimination cases.
The fifth reason is that:
“To the extent the operation and the counscling you
have undergone have been successful in changing your
essential nature from male to female, it has changed
you from the person Eastern has hired into a different
person. Eastern would not have hired you had it known
you contemplated or might in the future contemplate
such an action.”
Think of the significance of that last statement. Eastern
would not have hired the plaintiff. Even in their state of
absolute ignorance about what safety implications there
might or might not be concerning transsexuality and reas-
signment surgery, Eastern would not have hired the
plaintiff.
I read this as a virtual admission of discrimination, and in
my view that discrimination is based on sex within the
meaning of the statute.
C-24
Item five is also in my view inconsistent with Eastern’s
position that plaintiff has undergone no sex change. In any
event, I find that item five, aside from being evidence of the
very discrimination charged, is pretextual.
The final paragraph in the letter says that:
“Each of these grounds represents an independent
ground.”
That is well and good for Eastern to say, but life does not
always work out the way you want it to. In assessing the
good faith of each of these separate reasons, the Court con-
siders them together, and it is difficult to be taken seriously
on one assertion when you have been shown to be frivolous
on another. Now, I have indicated that I think each of these
reasons considered alone and independently is a pretext, and
that conclusion is heightened by the reciprocal effect these
various reasons have on each other when considered together
and in the context of this case. On the other hand, I find
them no more convincing in combination than I do
individually.
Now, why was the plaintiff really fired? What was the
real reason? I conclude from the evidence I have heard in
this case that Eastern thought it had a real image problem:
A transsexual in the cockpit. How is that for you? What
are we going to do about that? The public will not accept it.
We will be the laughing stock of the airline industry. We
have got to do something about it.
Without giving it very much mature thought, Eastern
went into action to sever itself from this problem. It prob-
ably thought this was the way to solve it, but they took the
wrong course in my view. The legal department did the
directing, and the medical department did the casting and
provided the props.
There has been some testimony about the plaintiff’s facade
and her dissembling, her manipulation. I find that the real
C-25
facade and the real dissembling and the real manipulation
has been on the part of Eastern Airlines.
I want to turn now to the second discharge letter. I find
that the second discharge was not a retaliation for having
filed this suit or for having filed the arbitration proceedings.
It was, rather, an attempt to bolster the case for discharge.
Assuming there was a legitimate reason for discharge, there
is nothing wrong with that. As I said yesterday, I think that
is the sensible thing to do. If more ammunition comes to
your attention during the course of litigation or even if there
is no litigation, the sensi’ thing to do is to avail yourself of
it. So I do not hold against Eastern in any way that it sent
out the second letter. That letter, however, has to be evalu-
ated in terms of whether it articulates a non-discriminatory
reason and wheiher that alleged reason is or is not
pretextual.
Now, the first reason in the letter of March 25, 1982, is
that plaintiff failed to disclose to the company her medica-
tion and her psychietric and medical treatment that she had
had over the years for her condition. The conclusion that
Eastern draws from that failure is that plaintiff, “showed a
gross disregard for the safety of your fellow employees and
the public at large and a consistent lack of sound judgment.”
The first thing to note about this alleged reason for dis-
charge is that the fact of the treatment and the fact of the
medication was known to Eastern at the time it wrote the
first letter of discharge. Granted, more detail was unearthed
as a result of discovery in this case, but no additional detail
threw any additional light on the question of whether that
medication or that treatment had a causal relationship to
any safety concern.
Now, the reason that is assigned in item one is that the
alleged failure to report this information earlier showed a
disregard for safety and a lack of sound judgment. Well,
where is the safety hazard, and if there is no safety hazard,
where is the lack of sound judgment? Again, we have a
C-26
failure to articulate, and we have a failure to provide any
substance to the reason given.
The second thing about this reason is that, in fact, the
drugs plaintiff was taking were not dangerous. They did not
affect her ability to fly. So there is no lack of sound judg-
ment. It is not merely a question that Eastern has failed to
show that they were dangerous. I am satisfied from the
evidence here and by the greater weight of that evidence
that, in fact, the drugs were not dangerous in terms of either
plaintiff’s individual ability to pilot the airplane or any
effect it might have on the passengers or crew.
Now, the third consideration in relation to item one is that
there is disparate treatment here between the plaintiff and
the alcoholics, all of whom are male. Captains Shipner and
Helms both testified to the conspiracy of silence that there
had been for years in regard to alcoholic pilots at Eastern
Airlines. Pilots drank and flew. They did not disclose that
to the company, obviously. They were not fired, with rare
exception. The safety factor with alcohol is not unknown,
which is the best Eastern can manage to say about the safety
considerations in regard to female hormones. The safety
factor with alcohol is well-known. If you are drunk, you do
not have the physical or mental ability to fly an airplane or
walk a straight line.
Did they fire these alcoholic pilots who had failed to
reveal that they were drinking and had an alcoholic prob-
lem? No, they did not. But they fired the plaintiff for
having taken hormones and having received psychiatric
treatment for problems that have not been shown to have
any relation whatsoever to safety considerations.
The final thing I consider in connection with item one and,
indeed, in connection with the first discharge letter as well is
the drastic nature of the discipline which was imposed upon
the plaintiff: Discharge—no investigation of any substantial
kind, no fair hearing, no opportunity to reform. Discharge.
What a difference between the way plaintiff was treated and
C-27
the way alcoholics and males with other psychological and
emotional problems have been treated by Eastern Airlines.
Dr. Jones testified without contradiction that first of all,
large amounts of hormones, if ingested, are simply excreted
by the body. He further testified that any ill effects of the
long range kind he said could occur, such as heart trouble, if
they had not occurred by the time the patient ceased taking
the excessive amounts of hormones, they were unlikely to
occur later. In other words, any deleterious effect that might
be argued to occur from taking more hormones than medi-
cally advisable immediately ceases upon the cessation of the
overdosages.
Was any consideration given to telling the plaintiff,
“Look, don’t take what we regard as excessive dosage of
hormones any more,” as the alcoholics were told, “Don’t
drink any more”? No, plaintiff was fired without any oppor-
tunity to satisfy any legitimate medical concern that the
defendant might arguably have had. The defendant was not
interested in giving the plaintiff a chance. The defendant
was not interested in investigating or in following its normal
procedures because it was afraid of what the results would
be. It pretty well knew that those results would not bolster
its already-made decision to fire the plaintiff but, rather,
would undermine the legitimacy of that decision.
Now, the second reason given in the—
Let me say first that reason number one is a pretext.
Turning to reason number two, Eastern says that:
“The failure to disclose the medications and the psy-
chiatric treatment on the FAA applications for medical
certificates shows a consistert pattern of poor judgment
and willingness to endange: ur fellow crew members
and passengers for your own benefit.”
Now, I have already indicated why this is not true and
why Eastern had no basis for saying that it was true. The
hormones were approved by the FAA, and the amounts that
C-28
the plaintiff was taking did not endanger anybody, and
Eastern had no basis for believing otherwise. Eastern has
changed its position here at the trial. Its case has continu-
ally changed as new information and new theories have
occurred or become known to counsel. At trial the thrust of
item number two was that plaintiff is untruthful and, there-
fore, cannot be trusted to give reliable information, and this
actually was the foundation for much of Captain Causey’s
testimony: She did not reveal the medications. Therefore,
how can you trust her in the cockpit?
You will recall how we went around with that and could
not figure out a connection between the two things, but that
is another point. What is important ‘mmediately is that this
is not the reason that Eastern gave in the second firing letter.
They did not say anything about untruthfulness or lack of
trust. They said, “This behavior shows a consistent pattern
of poor judgment and willingness to endanger your fellow
crew members and passengers for your own benefit,” essen-
tially, in other words, the same reason they had given in
item one of the second letter. There was nothing said about
untruthfulness back at the time of the discharge. That has
been added here as further justification at trial.
Now, assuming that Eastern had fired the plaintiff
because of untruthfulness or assuming further that whether
they did or not they can now rely on it as an additional
reason for justifying the firing, we still have the question of
whether that alleged untruthfulness is a pretext or not. I
find that it is or would be if that were what had been relied
upon. The considerations here are, of course, the disparate
treatment of male alcoholics. They had certainly been
untruthful during the entire time the admitted conspiracy of
silence existed. Talk about endangering the flying public,
talk about endangering the fellow crew members for your
own benefit, talk about a legitimate reason to distrust
somebody. How about flying an airplane in an intoxicated
condition or with a condition of alcoholism that is untreated,
C-29
whether or not the pilot may have been drinking immedi-
ately prior to take-off.
In considering again the question of untruthfulness, it has
to be evaluated in company with its neighbors, all of the
other reasons which are clearly pretextual. How likely is it
that we find a winner among all these losers? It is possible,
but in evaluating the good faith of Eastern, I do not evaluate
these reasons in a vacuum one by one.
Now, let’s just assume that Eastern really does believe that
the plaintiff was untruthful in her FAA applications. In
fact, I think it is a very defensible position to take that the
plaintiff should have revealed her psychiatric treatment and
her medications on the applications. There is an argument
the other way. It is clear to me that the plaintiff wanted to
keep her job and concluded correctly, as it turns out, that
revealing these matters would be very likely to result in the
loss of that job for no reason other than the prejudice of her
employer.
I do not say that that justifies any intentional failure to
divulge relevant information on the application form, and I
do not mean to be interpreted as excusing intentional mis-
representation or intentional omission if it is motivated by
self-interest. But on the question of judgment considered
alone and on the question of whether a real safety hazard
was presented, I do not think that the plaintiff used poor
judgment in terms of safety concerns by failing to reveal this
information. But let’s assume otherwise for purposes of
argument.
Let’s assume that si.. intentionally failed to reveal to the
FAA information which she believed they were entitled to
have. How does that differ from what the alcoholics did
during the conspiracy of silence? The answer is, it does not
at all. How does it differ from the failure of any other
Eastern pilot with a serious emotional problem who was
having psychiatric treatment to reveal that information on
his application? It does not.
C-30
Here I would like to refer to the case of McDonald v. Santa
Fe Trail Transportation Company, 427 U.S. 273, at 282. This is
a case where two white employees were fired for stealing
company property whereas a black employee who had been
guilty of the same thing was not fired. The Supreme Court
said this at pages 282 to 283:
“We find this case indistinguishable from McDonuell
Douglas. Fairly read, the complaint asserted that peti-
tioners were discharged for their alleged participation
in a misappropriation of cargo entrusted to Santa Fe but
that a fellow employee likewise implicated was not so
disciplined and that the reason for the discrepancy in
discipline was that the favored employee is Negro while
petitioners are white. [Citation omitted]
While Santa Fe may decide that participation in a
theft of cargo may render an employee unqualified for
employment, this criterion must be ‘applied alike to
members of ail races,’ and Title VII is violated if, as
petitioners alleged, it was not.”
Now, that case was considering the sufficiency of the
complaint, but the principle is applicable here. If Eastern
Airlines decides to fire pilots who are untruthful concerning
relevant medical information on their FAA applications, it
must fire them without regard to sex. It did not do so in the
ease of male pilots. It did do so in from what I can gather
the sole instance of a non-male pilot who arguendo was
guilty of a failure to disclose. This disparate treatment turns
the alleged reason into a pretext on that basis alone.
Now, the third reason in the second letter is that plaintiff
allegedly instigated publicity which was designed to embar-
rass Eastern Airlines. There is no substance whatever to
that accusation. The publicity was made inevitable by East-
ern’s discharge of the plaintiff. Plaintiff had every right to
file this lawsuit. Eastern clearly anticipated that it was in
C-31
for a lawsuit because it geared up for it prior to the dis-
charge, and in view of the unusual nature of this lawsuit,
publicity was inevitable.
I have a jury box here that is filled with members of the
press who were not brought here by the plaintiff. The press
reported the filing of this case extensively at the time it was
filed. They did not learn about it from the plaintiff as far as
I know. They learned about it because it was a matter of
public record. So there was going to be inevitably a lot of
publicity about this case whether plaintiff made herself
available to the media or not.
Now, it is true that she has made herself available to the
media and to other persons as well, medical persons. She has
attended grand rounds with Dr. Berger and contributed to
the medical education of doctors and medical students,
which I think is commendable. The more that we learn
about matters of this kind, the better off we are going to be.
I sat and listened to the television program that emanated
from Philadelphia, and 7 found it to be on the whole a
tasteful and educational program. I do not think the plain-
tiff did anything that was untoward during that interview.
She conducted herself properly as did her attorney. The
moderator of that program, incidentally, struck me as hav-
ing a great deal more perception about the problem of
transsexuality than some of the medical witnesses who tesi-
fied in the case. There is no doubt that he was a lot brighter.
If there was anything that was damaging to Eastern Air-
lines about that program over and above whatever damage it
might have suffered by the mere instigation of this litiga-
tion, it does not occur to me.
Similarly, the newspaper articles that I have read are
factual, typical of newspaper articles that are written about
any litigation which is of public interest and especially cases
that are unusual or even unique in character. In short, much
of this publicity was inevitable. Any incremental publicity
occasioned by plaintiff’s initiation was hardly significant in
O-32
the total picture. But let’s assume that it was. Is this
another pretext? Of course, it is.
I will not go into the Playboy Magazine, but we had there
nude pictures of Eastern Airlines’ employees, which did not
bother Eastern at all. They appeared in Playboy Magazine.
Here we have one picture of an Eastern First or Second
Officer standing beside his wife or, rather, in one pic ure he
is above his wife, and in another picture immediately below
that. here is his wife, an Eastern stewardess, stark naked in a
bathtub in Playboy Magazine with a circulation of how
many millions, and not a peep out of Eastern. Captain
Buittion, I think it was, is not peeping even now. I suppose
that is a terrible pun, isn’t it? I did not mean it that way. A
clearer example of disparate treatment would be hard to
imagine.
The fourth and final reason is that:
“This notoriety would undermine Eastern’s efforts to
reassure passengers of the safety of airline
transportation.”
Here again we have a failure to articulate a comprehen-
sible reason. The relationship between the transsexuality
and the publicity about the transsexuality on the one hand
and any rational safety concern on the other simply does not
appear from the evidence in this case. This ground is plainly
and literally nonsense as far as I can tell.
I find in summary that all of the reasons advanced by
Eastern for the discharge of the plaintiff were pretextual and
were not advanced in good faith.
\
I further find that but for being a transsexual and but for
having had the transsexual surgery, the sex reassignment
surgery, and adopting the life style of a woman, the plaintiff
would not have been discharged.
I further find that the plaintiff was in almost every
instance subjected to discriminatory and disparate treatment
for conduct which was in almost every instance, if not every
C-33
instance, far iess serious that that of male alcoholics whose
conduct was excused by Eastern.
I turn now to the second general question, and that is
whether, assuming a sex-based series of decisions on the part
of Eastern, those decisions can be justified as bona fide
occupational qualifications; that is, can Eastern justify the
proposition that not being a transsexual and not having
transsexual surgery is a bona fide occupational qualification?
In order to prevail on that theory, on which Eastern has
the burden of proof, Eastern would have to prove, according
to the case of Orzel v. City of Wauwatosa Fire Department, 697
F. 2d 743, Seventh Circuit, 1983, at page 753, “that the
challenged sex qualification”—I am inserting “sex” for
“age” in this quotation; it was an age discrimination case—
“that the challenged (sex) qualification is reasonably related
to the essential operation of its business and that either there
is a factual basis for believing that all or substantially all
(transsexuals) would be unable to effectively perform the
duties of (a pilot) or that it is impossible or impracticable to
determine job fitness on an individualized basis.”
Eastern has proved neither of these propositions. The
evidence, on the contrary, proves that neither of these pro-
positions is true.
I am satisfied from this evidence that while some transsex-
uals, just as some tall people and some lefthanders, some fat
people, and some Irishmen would not be safe airline pilots, it
is true that some transsexuals would not be safe airline
pilots. But it cannot be said with any rationality that all
transsexuals are unsafe airline pilots.
Neither can it be said with any rationality that it is
impossible to make this determination of whether or not a
safety hazard is really involved on an individualized basis.
Eastern never attempted to do anything on an individualized
basis and instead attempted to justify its discrimination
against the plaintiff by resort to an indefensible generaliza-
tion about all transsexuals. They got whatever help they
C-34
could from plaintiff’s individualized record. Wherever they
could find something that they could use against the plaintiff,
they threw it in, but they blinded themselves utterly to any-
thing in the individualized record which favored plaintiff,
which tended to show that she was and would be a safe pilot
and, of course, failed to conduct any investigation of any kind
that would be likely to reveal the truth in that regard.
I am going to enter judgment for the plaintiff, and the
question is on what counts and against which defendants.
Count I alleges that plaintiff was discharged because she is a
woman. Count II alleges that she was discharged because
she is a transsexual.
I feel more comfortable with Count II. I believe that these
are truly alternate theories and that it cannot be both ways.
It has got to be one or the other. The evidence much more
clearly establishes in my opinion that transsexuals are
entitled to protection under the act than it does that an
operated transsexual is now a woman. While I would not
argue with the latter proposition, the former seems to me
more strongly supported by this record.
Accordingly, I am going to enter judgment against the
defendants and in favor of the plaintiff on Count II, the
transsexual count. In doing so, I do not mean to imply that
if Count I were the only count I would not enter judgment
for plaintiff on that count. I say that because one never
knows “beyond a shadow of a doubt” what the Appellate
Courts might do, and in the event the finding on Count II
should be reversed, I would want plaintiff to be in the
position of arguing alternatively that the judgment should
be affirmed on Count I because upon remand in such a
situation, I would enter judgment for plaintiff on Count I on
the basis of the record that has already been made here.
Now, I believe that judgment is proper on Count II against
all defendants but Shipner. It is not clear from the com-
plaint just who is charged in what count, but Shipner is not
alleged to have done anything that I can see in Counts J or
C-35
II. I gather he is in the conspiracy count and some of the
other counts later on, but as to the remaining defendants,
Eastern, Buttion, Millett—
MR. DICKIE: Excuse me, your honor. I believe it was
stipulated that Title VII was against the company.
THE COURT: Against the company only?
MS. TINKER: Yes.
THE COURT: All right, that simplifies matters.
Judgment will be entered against Eastern only.
Now, as I indicated before we started this trial, I believed
and still believe that this case will be greatly simplified by a
determination on appeal concerning the sex discrimination
counts. Either way the case went, the sensible thing to do in
my view was to certify the judgment under Rule 54(b). The
case is not, however, at this juncture in a posture for such
certification because we do not have a final order. In order to
have a final order, we cannot have merely a declaration of
rights; we have got to have a judgment that is enforceable.
I am going to declare and do declare that the plaintiff is
entitled to reinstatement with full seniority from the date of
her discharge, all employment benefits that she would
otherwise have received had she not been discharged, full
back pay, and her reasonable attorneys’ fees. What remains
to be determined is the amount of the back pay and, of
course, the amount of these benefits and her place on the
roster, the possible question of mitigation of damages, all of
which, it seems to me, will be fairly simple.
It seems to me that much of it can be stipulated to, but
maybe not. I do not know. I urge you to get together as you
have throughout this case. There has been acrimony, but I
think generally speaking counsel have conducted themselves
as professionals, and I am sure you wiil continue to do so,
and you can save your clients a lot of time and expense by
C-36
cooperating in whatever further discovery might be
necessary.
Plaintiff’s income tax returns, for instance, should be pro-
duced on the question of mitigation or whatever other fact
they may be pertinent to.
There is one more item | want to cover before I cease these
brief remarks, and that is a very important misquotation
that occurred in the reported version of my oral opinion
when I denied the motion to dismiss. I did not even know it
had been reported. Somebody sent it in, and when I read it
the other day in 28 F.E.P. Cases, there is one statement that
is the exact reverse of what I said or at least what I meant to
say. I am going to read the statement so | can correct it now
in the record.
This is at page 1439 of that report. The statement was:
“What does seem to me apparent is that there is no
way out of the conclusion that whatever the physiology
may be, it has nothing to do with sex as that term is
constantly understood.”
Now, the word, “nothing,” there totally turns on its head
what I was trying to say. I am sure that I used the word,
“something,” and if I did not, that is what I meant to say,
and I want to clarify that for future reference.
It is surprising to me that nobody caught that before it
was sent in. I think I would have caught it had somebody
told me they were going to send it in. I think for whatever
good it might do, I will send that correction into the book
publisher so that I do not go down in posterity as someone
who cannot articulate a reason for a decision.
What do counsel suggest in terms of a hearing on the
damage question? Do you want to think about it and let me
know?
MR. DICKIE: Your Honor, I would hope that we could
prepare perhaps a judgment order and work it out. We have
C-37
some other number of things to talk to Mr. Brown about.
Maybe we could prepare something.
THE COURT: Well, here is what I intend to do as far as
the judgment order is concerned. I intenu to have these
remarks transcribed. I will then read them over, correct any
grammatical errors or double dangling participles and make
that my findings of fact and conclusions of law, and that will
be appended physically to a very short judgment order, and
that will save everybody the time and effort.
I mean, the reason I took this time is | want to state the
reasons for my decision, and to the best of my ability, I have
done so. So do not bother preparing any additional facts or
conclusions.
MR. DICKIE: What you would like is some
computations.
THE COURT: Yes, exactly, but these are my findings on
the liability question.
What do you think we should do, have a status call?
MR. DICKIE: We can probably do it in a week.
MR. BROWN: About a week would be fine. I take it
what we are looking for would be a dollar amount concerning
the back pay plus benefits.
THE COURT: Right. I think you start feeding things
into the computer, and you get the answer. And, of course,
this is without prejudice to Eastern’s position that it is not
liable for anything.
MR. BROWN: Yes.
THE COURT: I mean, all this will have no effect if the
liability finding is reversed.
MR. BROWN: I think we can work it out. As a matter
of fact, if you would start working on the income tax returns,
we can get that done.
C-38
THE COURT: How about January 3rd at 10:00 o’clock?
MR. DICKIE: That may be just a bit soon with the
holiday.
THE COURT: How about January 10th or sometime
between the 3rd and the 10th? We can make it any morning
you want.
MR. BROWN: The i0th would be all right.
THE COURT: That is a Tuesday. Tuesday is the 10th.
MR. DICKIE: Tuesday is the 10th, your Honor?
THE COURT: Is that all right?
MR. DICKIE: Tuesday the 10th, your Honor.
THE COURT: Tuesday the 10th at 10:00 o’clock.
MR. DICKIE: Thank you very much.
THE COURT: Thank you, counsel.
(Which were all the proceedings had in the above-entitled
cause on the day and date aforesaid.)
I certify that the foregoing is a correct transcript from the
record of proceedings in the above-entitled matter.
Laura M. Brennan Date
APPENDIX D
D-1
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
>
KAREN FRANCES ULANE,
Plaintiff
V. ‘
EASTERN AIRLINES, INC., et al.,
Defendants. J
NO. 81 C 4411
MEMORANDUM OPINION
In my oral findings of fact and conclusions of law
announced from the bench on December 28, 1983, I expressed
an intention to find in favor of the plaintiff on Count II
(discrimination against a transsexual) and against the plain-
tiff on Count I (discrimination against a female). It seemed
to me that plaintiff had made a much better case that she is a
transsexual than that she is a female. Upon further reflec-
tion, I think plaintiff may have made an equally good case
on Count I. See M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204
(App. Div.), cert. denied, 71 N.J. 345, 364 A.2d 1076 (1976); In
Re Anonymous, 57 Misc.2d 813, 293 N.Y.S.2d 834 (N.Y. Civ.
Ct. 1968); The Law and Transsexualism: A Faltering Response to
a Conceptual Dilemma, 7 Conn. L. Rev. 288 (1975); Comment,
Transsexualism, Sex Reassignment Surgery, and the Law, 56
Cornell L. Rev. 963 (1971); Comment, Transsexuals in Limbo:
The Search for a Legal Definition of Sex, 31 Md. L. Rev. 236
(1971). Moreover, if I were to find against plaintiff on Count
I, she would be compelled to cross appeal, and this would be
anomolous. She has prevailed on her Title VII claim and
should »ot be burdened with having to appeal the rejection of
an alternative theory to support the relief granted.
D-2
Accordingly, the judgment will be in favor of plaintiff on
both Counts I and II of the complaint.
DATED: February 8, 1984
ENTER: /s/ JOHN F. GRADY
United States District Judge
APPENDIX E
E-1
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAREN FRANCES ULANE,
Plaintiff,
* NO. 81 C 4411
EASTERN AIRLINES, INC., et al.,
Defendant. }
SUPPLEMENTAL FINDINGS
Plaintiff has moved, pursuant to Rule 52(b) Fed. R. Civ.
P., for clarification of the court’s rulings in regard to Count I
of the complaint. She asks for an indication that the find-
ings supporting the conclusion that plaintiff is a transsexual
also support a finding that she is a female and, further, that
the findings as to sexual discrimination be made expressly
applicable to Count I as well as to Count II.
The basic question in this case is whether plaintiff was
discharged because of her sex within the meaning of Title
VII. I found that, whether plaintiff be regarded as a
transsexual or as a female, she was discharged by Eastern
Airlines because of her sex. On the question of plaintiff’s
exact sexual status, I was satisfied from the evidence that she
is a transsexual and so found. If Title VII protects transsex-
uals, then plaintiff is entitled to the relief awarded. On the
other hand, if on appeal Title VII is held not to apply to
transsexuals, then plaintiff should have a ruling on her
alternative position that she is a female. As an alternative to
my finding that plaintiff is a transsexual, I find that plain-
tiff’s post operative legal status is that of a female. If on the
evidence presented in this case the choices were limited to
male or female, I would and do find that the evidence clearly
E-2
predominates in favor of the conclusion that plaintiff is a
female, not a male. All of the evidence which supports the
view that plaintiff is a transsexual also supports the finding
that she is a female.
It was and is my intention that all of my findings and
conclusions concerning sexual discrimination against the
plaintiff by Eastern Airlines, Inc. apply with equal force
whether plaintiff be regarded as a transsexual or a female.
DATED: March 6, 1984
ENTER: /s/ JOHN F. GRADY
United States District Judge
APPENDIX F
APPENDIX F
In the
Wnited States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 16, 1984.
Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. HARLINGTON Woop, JR., Circuit Judge
Hon. EDWARD DUMBAULD, Senior District Judge*
KAREN FRANCES ULANE, Appeal from the United
‘sate Ss District Court f
Plaintiff ~Appe lee, The } A vanevwed inion
No. 84-1431 vs. of Illinois, Eastern
‘ Division.
EASTERN AIRLINES, INC., A Delaware No. 81 C 4411
corporation, a:
John F. Grady, Judge
Defendant-A ppellant. -
On consideration of the petition for rehearing and sugges-
tion for rehearing in banc filed on September 18, 1984, in the
above-entitled cause by counsel for plaintiff-appellee Karen
Frances Ulane, no judge in active service has requested a
vote thereon, and all of the judges on the original panel have
voted to deny a rehearing. Accordingly,
IT IS ORDERED that the aforesaid petition for rehearing
be, and the same is hereby, DENIED.
*The Honorable Edward Dumbauld, Senior District Judge of
the United States District Court for the Western District of Penn-
sylvania, is sitting by designation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.